State of Bombay vs Narothamdas Jethabai and Anr.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 20 December, 1950

Coram: Mehr Chand Mahajan, Saiyid Fazal Ali

In the appeal titled State of Bombay versus Narothamdas Jethabai and another, the matter was heard on 20 December 1950 before the Supreme Court of India, with Justice Fazl Ali participating on the bench that also included Justices Mehr Chand Mahajan and Saiyid Fazal Ali. Justice Fazl Ali stated that he had examined the judgment prepared by his colleague Justice Mahajan and, while he generally agreed with the conclusions and the reasoning set out in that judgment, he considered the issues raised to be sufficiently important to warrant a brief, separate judgment of his own. He observed that the appeal presented three distinct questions for determination. The first question concerned whether the Bombay City Civil Court Act of 1948, designated as Act XL of 1948, exceeded the constitutional powers of the Legislature of the State of Bombay and was therefore ultra vires. The second question asked whether Section 4 of the same Act, in any circumstance, was beyond the authority of the State Legislature. The third question inquired whether the Bombay High Court possessed jurisdiction to try the suit that gave rise to the present proceedings. Justice Fazl Ali noted that the High Court had already decided the first and the third questions in favor of the appellant, while it had decided the second question in favor of the respondents. Consequently, before the Supreme Court the appellant challenged the High Court’s decision only on the second question, whereas the first respondent challenged the High Court’s decision on the first and third questions. He then explained the substantive purpose of the Bombay City Civil Court Act, which was to establish an additional civil court for the Greater Bombay area. This new court was intended to have jurisdiction to try, receive and dispose of all civil suits and other civil proceedings whose monetary value did not exceed a prescribed limit, subject to certain exceptions that need not be detailed in this discussion. The respondents argued, however, that the Act was ultra vires the State Legislature because it purported to grant the new court jurisdiction over matters that the Provincial Legislature could legislate on under List II of the Seventh Schedule to the Government of India Act 1935, as well as over matters that, under List I, were reserved exclusively for the Central or Federal Legislature. As an illustration, the respondents cited promissory notes, which fall within entry 28 of List I. To clarify this contention, Justice Fazl Ali referred to the specific entries relevant to the debate. Entry 53 of List I reads: “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 state 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…”. Finally, entry 15 of List III provides: “Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in”. These excerpts were presented to frame the legal issues concerning the constitutional competence of the State Legislature to enact the provisions of the Bombay City Civil Court Act.

The respondents’ argument may initially seem reasonable, but in my view it lacks a sound legal basis. To determine the issue correctly, it is necessary first to examine the meaning of the expressions contained in entry 1 of List II, namely “administration of justice, constitution and organization of all courts except the Federal Court.” A reference to the three legislative lists demonstrates that the “administration of justice” is wholly a provincial matter, and therefore only the Provincial Legislature possesses the authority to legislate on it. The same principle applies to the phrase “constitution and organization of all courts except the Federal Court.” The term “administration of justice” embraces a broad scope, covering both civil and criminal justice, and I consider entry 1 of List II to be a complete and self-contained provision. Within this entry there is no separate reference to the jurisdiction and powers of courts, because the unqualified and unrestricted use of the expressions “administration of justice” and “constitution and organization of courts” is sufficiently wide to include the courts’ power and jurisdiction. Justice cannot be administered if courts lack the authority to hear and decide cases, and courts cannot function without such authority. Consequently, by virtue of the wording of entry 1 of List II, the Provincial Legislature may confer upon the courts it creates the power and jurisdiction to try any matter that a civil or criminal court is capable of dealing with. The phrase “administration of justice” inevitably incorporates the power to entertain suits and proceedings of both civil and criminal nature, regardless of who the parties are or what the subject matter may be. This power also embraces the authority to define, expand, alter, amend, reduce, and otherwise modify the jurisdiction of the courts, including the ability to prescribe territorial and pecuniary limits. The next point for consideration is the precise meaning of entry 2 of List II and entry 53 of List I, which have been cited as contrary to the foregoing interpretation. In my opinion these entries grant special powers to the Provincial and Central Legislatures, distinct from the general power conferred by entry 1 of List II. These special powers logically arise as a consequence of each Legislature’s competence to legislate on matters enumerated in its respective list. The effect of these entries is that, while legislating on matters within their lists, the two Legislatures are also competent to insert provisions in the statutes they enact relating to the jurisdiction and powers of courts concerning the subject-matter of those statutes, because otherwise the legislation would be incomplete or ineffective. The language used in entry 2 of List II

Entry 53 of List I and entry 2 of List II were interpreted to be sufficiently broad to allow the Central and Provincial Legislatures to enact laws that both restrict and grant judicial authority over matters that fall within their respective legislative spheres. In practical terms this means that the legislatures may expressly exclude the jurisdiction of existing courts with respect to particular subjects, and at the same time they may create a special jurisdiction for designated courts to deal with those subjects. Moreover, beyond the ordinary powers normally exercised by courts, the legislatures may confer upon courts the authority to issue special types of orders, examples of which will be cited later in the judgment. In support of this view reference was made to Section 9 of the Code of Civil Procedure, which states that “the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” This provision clearly acknowledges that legislatures can, by express or implied words, bar civil courts from hearing certain categories of suits. The statute-book contains numerous instances where Acts of the Central or Provincial Legislatures have withdrawn the jurisdiction of civil courts over particular classes of civil actions. Likewise, many statutes expressly designate that any suit or proceeding relating to the subject matter of the Act must be tried by the specific court or courts named in the legislation. Such provisions appear in statutes enacted both before and after the Government of India Act, 1935, and it is evident that Parliament, when passing that Act, was fully aware of the prevailing legislative practice in India and of the necessity of allowing legislatures to make such jurisdictional provisions. Consequently Parliament empowered the Central and Provincial Legislatures to exercise these powers under entry 53 of List I and entry 2 of List II respectively. The Court regarded this interpretation as the true purpose of the two entries, explaining why a distinct entry was required to enable the legislatures to regulate the power and jurisdiction of courts with respect to matters enumerated in the three Legislative Lists. Without such express authority, the legislatures would lack the capacity to grant special jurisdiction to courts over the listed matters, nor could they lawfully bar the jurisdiction of ordinary courts even when such measures might be deemed necessary or desirable. The Court noted that the language of the entries expressly mentions “jurisdiction and power”. The term “power” is comprehensive, encompassing all procedural and substantive authorities that a court may exercise; however, the full import of this term becomes clear only after examining a wide range of local and special statutes that illustrate its application.

The Court explained that statutes sometimes give courts the authority to make special and unusual orders. For instance, Section 13 of the Indian Aircraft Act, 1934 states that when a person is convicted of an offence punishable under any rule made under the relevant clauses, the court that convicted him may order that the aircraft, article, or substance involved in the offence shall be forfeited to His Majesty. Similarly, Section 24 of the Indian Arms Act, 1878 provides that when a person is convicted of an offence punishable under that Act in respect of any arms, ammunition, or military stores, the convicting court or magistrate, at its discretion, may direct that the whole or any portion of such arms, ammunition, military stores, and any vessel associated with them shall be confiscated. The Court also referred to Section 10 of the Central Excises and Salt Act, 1944 and Section 13 of the Food Adulteration Act, 1919, both of which contain comparable provisions, as well as to various statutes dealing with money-lenders that grant courts special powers to reopen certain transactions in order to provide relief to debtors. The Court observed that the term “power” was inserted alongside “jurisdiction” in entry 53 of List I, entry 2 of List II, and entry 15 of List III to enable the two Legislatures to confer such special powers on the courts that handle the subject-matter of specific legislation. The Court further noted that, even after the Government of India Act, 1935 was enacted, many Central and provincial statutes continued to contain special provisions concerning court jurisdiction. Focusing on legislation passed by the Bombay Legislature, the Court cited the Bombay Probation of Offenders Act, 1938 (Bombay Act No. XIX of 1938), where Section 3 authorises the High Court, a Court of Session, a District Magistrate, a Sub-Divisional Magistrate, and a salaried Magistrate to exercise powers under the Act. In the Bombay Agricultural Produce Markets Act, 1939, Section 23 declares that no offence under that Act shall 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 stipulates that no criminal court inferior to a Presidency Magistrate or a Second-Class Magistrate may try any offence under the Act. Finally, the Court mentioned Section 19 of the Bombay Sales of Motor Spirit Taxation Act, 1946, together with Section 5 of the Bombay Harijan Temple Entry Act, 1947, as further examples of provisions that limit the jurisdiction of certain courts under specific circumstances.

The Court noted that the provisions of the Bombay Harijan Temple Entry Act, 1947, constitute examples of clauses that exclude the jurisdiction of courts under particular circumstances. It added that similar provisions could be found in many statutes enacted by the Central Legislature and by other Provincial Legislatures, but it was satisfied that the examples already cited were enough to demonstrate two points. First, the practice that existed before the Government of India Act continued to operate even after that Act was enacted. Second, the expression “jurisdiction and powers” had been consistently interpreted to have the meaning that the Court had explained. The Court then turned to the interpretation advanced by the respondent with respect to the entries in List II and set out three objections to that construction. The first objection was that the respondent’s view would narrow the meaning of the phrase “administration of justice” so far that it would strip the phrase of its primary substance – namely, the jurisdiction and powers of the courts, without which the administration of justice cannot be carried out. The second objection was that the respondent’s approach would require reading entry 2 of List II as if it were part of entry 1 of the same List, despite the fact that entry 2 had been separately numbered as an independent entry. The Court explained that the scheme of the three Legislative Lists appears to be that each entry should relate to a distinct subject or to a group of cognate subjects, each group being independent of the others except for incidental overlap. By insisting that the words “jurisdiction and powers of courts, etc.” appearing in entry 2 of List II should have been placed in entry 1 because they are closely linked to the subject “administration of justice and the constitution and organization of courts,” the respondent’s construction would make the separate numbering of entry 2 appear inexplicable. The third objection was that the respondent’s construction would remove from the jurisdiction of the Provincial Courts a wide range of matters that normally fall within civil or criminal jurisdiction. If that construction were accepted, the courts would be unable to operate fully unless both the Provincial and Central Legislatures, by piecemeal legislation or otherwise, had completely exhausted their power to legislate on every subject contained in Lists II and I respectively. Even after such exhaustion, the courts would still be unable to adjudicate important matters such as contracts, transfer of property, arbitration, wills and succession, or criminal law – matters listed in List III – until one of the two Legislatures enacted legislation on those subjects. This situation raised two significant questions: which of the two Legislatures must act first, and how should any conflict between them be avoided. Finally, the Court observed that the construction proposed by the respondents would lead to anomalous results that could not have been imagined by the British Parliament when it enacted the Government of India Act, 1935, and that such outcomes could be illustrated by a few examples.

In the present discussion, the Court referred to entry 26 of List I, which concerns the “carriage of passengers and goods by sea or by air.” It was supposed that if goods transported by air were lost and a suit were filed concerning that loss, the suit would be heard by a court that possessed jurisdiction under the Civil Procedure Code, unless the Central Legislature had enacted special legislation on the matter, even though carriage of goods and passengers by sea or air was a subject placed in List I. According to the respondent’s argument, however, the provincial civil courts would lack competence to try such a suit unless the Central Legislature expressly empowered them to do so. To demonstrate the absurdity that could follow from accepting the respondent’s doctrine, the Court imagined an extreme illustration and tested the contention by stretching it to its furthest possible limit. The Court then considered entry 13 of List I, which mentions “the Banaras Hindu University and the Aligarh Muslim University.” Under entry 53 of List I, the Central Legislature possessed the power to legislate regarding the jurisdiction and powers of courts in respect of the subject-matter of entry 13. Consequently, it could be supposed that, given the broad wording of entry 13, the Central Legislature might enact a rule that suits in which either university appeared as plaintiff or defendant would be triable only before a particular court specified in that enactment, and that no other court would have jurisdiction over such suits. The Court found it difficult to accept that, until such legislation were made, a court which would otherwise be the proper forum would be completely deprived of jurisdiction to try any suit involving one of those universities, regardless of the underlying subject-matter. The Court expressed confidence that the framers of the Government of India Act, 1935 did not intend to create such a result. The Court further observed that at the time the Act was passed, the Provinces already possessed a large number of courts of law, and the administration of justice throughout the Provinces was in the hands of these provincial courts. The provincial civil courts dealt with all civil suits and proceedings that were triable under Section 9 of the Civil Procedure Code, while the provincial criminal courts handled all criminal cases triable under the Code of Criminal Procedure. The jurisdiction and powers of those courts were not limited to matters listed in List II, and they were not barred from dealing with cases relating to subjects assigned to List I.

The Court observed that the provincial courts were not excluded from hearing matters that fell within List I. Their jurisdiction in civil cases depended on the presence of a cause of action that created a civil liability, while in criminal cases it depended on the commission of an offence and on the procedural rules set out in the two Codes of Procedure concerning venue and related matters. The Court noted that the Government of India Act of 1935 did not envisage a radical alteration of the existing system of justice administration; rather, it was intended that the existing system would continue, subject to future legislation by the appropriate legislature—whether the Central or a Provincial legislature—should there be a need to confer or withdraw jurisdiction from courts concerning subjects listed in the Legislative Lists. Under the Act each Province became, to a considerable extent, an autonomous entity equipped with a complete machinery for administering justice to the fullest possible extent. The Court found no indication in the 1935 Act that its framers intended to reduce the judicial machinery to a limited or truncated system dealing only with matters specified in List II.

When addressing the arguments of the learned Attorney-General, who appeared for the appellant, the Court explained that the Attorney-General had suggested reliance on entry 4 of List III to interpret the impugned Act, which had received the Governor-General’s assent. He argued that the Provincial Legislature’s powers should be examined by combining the subjects listed in Lists II and III. According to that approach, the Provincial Legislature could legislate on (1) the administration of justice, (2) the constitution and organization of courts, and (3) civil procedure, including all matters incorporated in the Code of Civil Procedure as it stood at the time the Government of India Act of 1935 was enacted. The Court recalled that the Code of Civil Procedure includes provisions on the jurisdiction of courts, and that Section 9 of the Code expressly provides that courts have jurisdiction to try all civil suits except those that are expressly or impliedly excluded. The Code also contains rules on territorial and pecuniary jurisdiction. The Court observed that these three entries together cover precisely the field described in item 14 of Section 92 of the Canadian Constitution, which pertains to “administration of justice in the Provinces, including constitution, maintenance and organization of provincial courts of both civil and criminal jurisdiction, including procedure in civil matters in those courts.” The Court further noted that Canadian jurisprudence has interpreted the language of that provision to include the power and jurisdiction of courts.

The Court observed that the power and jurisdiction of courts fall within the matters listed, and that under that entry a Provincial Legislature may confer the widest possible authority on the courts. It considered the approach suggested by the Attorney-General as a useful test for determining 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 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 other provision of the Canadian Constitution; the phrasing “administration of justice; constitution and organization of courts” alone was sufficient to empower the Provincial Legislature to create a new court and invest it with all the powers that the impugned Act assigned to it. The Court further noted that the Central Legislature retained the authority to bar the jurisdiction of the new court by a special enactment covering any matter in List I, but so long as no such bar existed the court would possess jurisdiction to try all suits and proceedings of a civil nature as provided for in the relevant Act. The Court added that if the Provincial Legislature had merely increased the pecuniary jurisdiction of an existing civil court, no objection could have been raised; likewise, there was no reason to object when, instead of enlarging an existing court’s power to hear suits of a certain monetary limit, the Legislature created a new court and gave it the same comprehensive authority.

The Court then turned to the third question, namely whether the Bombay City Civil Court had jurisdiction to try a suit founded on a promissory note. The respondent relied on entries 28 and 33 of List I. Entry 28 concerned “cheques, bills of exchange, promissory notes and other like instruments,” while entry 53 (as previously identified) dealt with “jurisdiction and powers of courts with respect to any of the matters in List I.” The respondent argued that, when read together, these two entries implied that no court could try a suit involving a promissory note unless the Central Legislature had expressly invested that court with jurisdiction under entry 53 of List I. The Court held that this point was already addressed in its answer to the first question and therefore required no additional elaboration beyond the reasoning previously provided.

In addressing the first issue, the Court noted that the reasoning found some support in the decision of Prafulla Kumar Mukherjee and Others v. Bank of Commerce Limited, reported in 1947 F.C.R. at page 28. In that case, the respondents before the Privy Council presented arguments that were substantially the same as those advanced before this Court. The matter before the Privy Council concerned the validity of the Bengal Money-lenders’ Act, 1940. That statute restricted the amount that a money-lender could recover on loans and the interest thereon, and prohibited recovery of sums greater than the amounts permitted by the Act. The Bank, which was the respondent, questioned the validity of the Act in several suits that it had filed to recover loans and interest alleged to be due on promissory notes executed by the borrowers-appellants, as well as in suits brought by the debtors seeking relief under the Act. The Bank argued that the Bengal Legislature, by enacting the disputed provision, had attempted to legislate on matters that were expressly forbidden to it and reserved exclusively for the Federal Legislature, namely matters relating to promissory notes and banking, which fall under entries 28 and 38 of List I. Conversely, the appellants contended that the impugned statute was, in its substance, legislation dealing with money-lending, and that any reference to promissory notes or banking was merely incidental or ancillary to the provincial power to regulate money-lending. The Privy Council substantially accepted the appellants’ view.

The second point raised by the respondent concerned the validity of Section 4 of the Act, which provides: “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 this provision was invalid because it purported to delegate legislative power from the Provincial Legislature to the Provincial Government, a delegation the respondent claimed the Legislature was not entitled to make. The Court found this contention unsound. The section itself indicates that the Provincial Legislature, having exercised its judgment, determined that the newly created court should be given jurisdiction to try civil suits of a value not exceeding Rs. 25,000, and it left to the Provincial Government the task of specifying, by notification, when the court would be invested with that larger jurisdiction, the monetary limit having already been fixed by the Legislature. Consequently, any jurisdiction that the new court eventually acquires would originate from the Provincial Legislature itself, not from any separate delegation of legislative authority.

The Court observed that the jurisdiction would be exercised by virtue of the Act itself. It noted, as several learned colleagues had pointed out, that the decision in Queen v. Burah [3 A.C. 889] fully addressed the contention raised. The Court explained that the impugned provision constituted what the Privy Council described as conditional legislation. Such legislation, the Court said, does not delegate legislative power but merely prescribes the manner in which the Legislature’s prior decision is to be given effect. Referring to the Privy Council’s observations, the Court added that legislation conditioned upon the use of particular powers or upon the exercise of a limited discretion entrusted to trusted persons is neither unusual nor improper. The Court remarked that examples of this type of legislation are abundant in England, America and other jurisdictions. Citing remarks of certain American judges, the Court quoted that “many things upon which wise and useful legislation must depend 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 [143 U.S. 649]). The learned Attorney-General for the appellant argued that delegated legislation is permissible in this country, but the Court found it unnecessary to pursue that issue because the principle set out in Queen v. Burah [5 I.A. 178] was sufficient to resolve the matter. The Court further held that the present case lay well outside the principles articulated by the Federal Court in Jitendranath Gupta v. The Province of Bihar [[1949] F.C.R. 595], a point also emphasized by two colleagues who had been part of the majority in that earlier decision.

Consequently, the appeal was allowed. The judgment recorded that this appeal raised the important question of the constitutional validity of the Bombay City Civil Court Act, 1948 (the Act). While concurring with the majority’s conclusion, the judge set out the precise reasons leading to that 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 promissory notes. Although Section 12 of the Act barred the High Court’s jurisdiction over suits cognizable by the City Civil Court, and although a notification issued under Section 4 of the Act had raised the pecuniary limit of that Court from Rs 10,000 to Rs 25,000, the plaint asserted that the High Court possessed jurisdiction because both the Act and the notification were ultra vires and void. Because these constitutional issues were raised, the State of Bombay, the appellant, entered the proceedings on its own motion as a party defendant. The High Court, composed of Chief Justice Chagla and Justice Tendolkar, held that (1) the Act was intra vires, but (2) Section 4, which authorised the Provincial Government to enhance the City Court’s jurisdiction to the Rs 25,000 limit, amounted to an unlawful delegation of legislative power and was therefore void and inoperative. As a result, the suit, exceeding Rs 10,000 and not within the City Court’s original jurisdiction apart from the contested notification, was deemed properly filed in the High Court. Both findings were subsequently challenged before this Court, the first by the first respondent and the second by the appellant.

The matter before the Court involved an appeal wherein the State of Bombay was a party defendant. The Bombay High Court, consisting of Chief Justice Chagla and Justice Tendolkar, reached two principal conclusions. First, the Court held that the Bombay City Civil Court Act was intra vires, meaning it lay within the legislative competence of the provincial legislature. Second, the Court found that Section 4 of the Act, which authorised the Provincial Government to raise the monetary limit of the City Civil Court from Rs. 10,000 to Rs. 25,000, amounted to an impermissible delegation of legislative power. Consequently, the Court declared Section 4 to be void and inoperative. Because the suit in question exceeded Rs. 10,000 in value and, apart from the invalidated notification, was beyond the jurisdiction of the City Civil Court, the trial court concluded that the suit had been properly instituted in the High Court. Both of these determinations were contested before this Court: the first finding was challenged by the first respondent, while the second finding was challenged by the appellant, the State of Bombay.

Regarding the first point, counsel for the first respondent argued that Section 100 of the Government of India Act, 1935, when read together with entries 53 of List I, 2 of List II and 15 of List III, expressly limited the power of provincial legislatures to legislate on the jurisdiction of courts only in respect of matters falling within their respective legislative fields. The respondent submitted that the terms “administration of justice” and “constitution and organisation of courts” appearing in entry 1 of List II, although broad, should not be interpreted to include the power to confer jurisdiction, because such an interpretation would render the limiting words of entry 2 meaningless. The respondent further explained that if entry 1 were taken to encompass jurisdiction, entry 2 would become redundant; conversely, if entry 1 were limited to matters other than jurisdiction, it would still possess sufficient content to cover various aspects of court administration and organization. The scheme reflected in the three identical entries across the three lists was described as follows: provincial legislatures were empowered to constitute courts and provide for the administration of justice, whereas the authority to vest courts with jurisdiction rested with the Federal Legislature for matters in List I and with the Provincial Legislature for matters in List II; both legislatures could assign jurisdiction for matters in List III subject to the provisions of Section 107. Accordingly, it was submitted that the Act, insofar as Section 3 purported to grant the City Civil Court jurisdiction to try all civil suits not exceeding Rs. 10,000 arising within Greater Bombay, exceeded the provincial legislature’s competence and intruded upon the Federal field delineated by entry 53 of List I, leaving no scope for the doctrine of incidental encroachment.

In this case the Court observed that the provision, except for the exclusions that were not material to the question, was ultra vires the Provincial Legislature because it amounted to a direct intrusion into the Federal field delineated by entry 53 of List I. The Court explained that all three entries in the lists concerned the same subject matter – namely the jurisdiction and powers of courts – and therefore there was no space for applying the doctrine of incidental encroachment, as was argued by the respondent.

The Court noted that the argument raised by the respondent was not without merit. It referred to the decision of the Bombay High Court in Mulchand v. Raman [51 B.L.R. 86], which had been followed by the learned judges hearing the present appeal, and to the submission of the Attorney-General who had adopted the same approach before this Court. Both authorities invoked the doctrine of pith and substance in response to the respondent’s contentions. However, the Court held that while the pith-and-substance doctrine often provides the key to resolving conflicts that arise from overlapping legislative powers in a federal system, it offered little assistance in this instance. The difficulty lay in finding any usefulness in entry 2 when entry 1 seemed to give the Provincial Legislature a general power to legislate on the jurisdiction and powers of courts. The Court stressed that a broader power necessarily includes a narrower one, and that this relationship created a conceptual problem. A similar difficulty was identified in the construction of entry 4 of List III and entry 2 of List II in Stewart v. Brojendra Kishore, where a Division Bench of the Calcutta High Court interpreted the term “civil procedure” in entry 4 in a limited sense, expressly excluding jurisdiction and powers of courts. The Bench, after referring to the Judicial Committee’s decision in In re Marriage Reference [1912 A.C. 880], where “marriage and divorce” in the Dominion List was held to exclude matters concerning the solemnisation of marriage in the province because that subject was specifically covered in the Provincial List, observed that the situation was analogous. The learned judges declared that “civil procedure” in the Concurrent Legislative List must be construed to exclude matters relating to the jurisdiction and powers of courts, since a special provision for those matters existed elsewhere in the lists. They warned that to interpret the term otherwise would effectively erase the content of the second entry in the Provincial Legislative List. Counsel for the first respondent relied heavily on this decision and suggested that, had the Bombay High Court judges been made aware of the In re Marriage Reference precedent in Mulchand v. Raman, their conclusion might have been different.

Conversely, the Attorney-General submitted that there could be no conflict between two entries situated in the same list, and that the ordinary meaning of one entry should not be narrowed merely because another entry was present. He relied on observations of Gwyer C.J. in Atiya Begum’s case [1940 F.C.R. 110, 134], which stated that it would be practically impossible to define each item in the Provincial List in a way that would make it exclusive of every other item in that List, and that Parliament appeared content to adopt broad, general terms. The Court considered these remarks in evaluating whether a wide construction of entry 1 would render entry 2 meaningless, concluding that such an expansive reading could not be accepted if it would nullify the substance of the second entry.

The Court observed that the Constitution listed a number of broad categories and described each by words of wide and general meaning. It held that none of the items in the lists should be interpreted narrowly or restrictively, and that each general term must be understood to include all ancillary or subsidiary matters that can fairly and reasonably be said to fall within its scope. Those observations were originally made to support the conclusion that the power to legislate on “collection of rents” under entry twenty-one of List II also included the power to legislate on any limitation of a landlord’s right to collect rent, including the remission of rents, and that, consequently, the United Provinces Regularisation of Remissions Act, 1938, was within provincial competence. The Court noted, however, that such general observations did not answer the objection that a wide construction of entry 1 would strip entry 2 of all its substance and render it meaningless. Accordingly, the Court expressed the opinion that the expressions “administration of justice” and “constitution and organisation of courts” appearing in entry 1 must be read in a restricted sense so as to exclude from their ambit the “jurisdiction and powers of courts” that were dealt with specifically in entry 2. The Court further explained that this interpretation did not compel the conclusion that the Provincial Legislature lacked the authority to confer general jurisdiction on courts it created. If entry 1 alone did not empower the legislature to do so, entry 2 certainly could, when read together with entry 1. The Court stressed that the argument for limiting provincial legislative power over jurisdiction often overlooked the fact that “administration of justice” itself was a matter enumerated in List II. Consequently, under entry 2 the Provincial Legislature was competent to enact provisions conferring jurisdiction on courts with respect to the administration of justice, meaning a general authority to adjudicate all matters presented before them, except for matters expressly or implicitly excluded by existing law or by statutes passed under the entries in any of the three Lists that relate to jurisdiction and powers of courts. In other words, although the phrase “administration of justice” in entry 1 did not authorize legislation concerning the jurisdiction and powers of courts, the power conferred by entry 2 could be exercised with respect to any matter in List II, including the administration of justice. This brought the subject of general jurisdiction within the authorized field of provincial legislation, leaving a domain in which entry 2 could apply. Once the Provincial Legislature was found competent to enact a law concerning the general jurisdiction of courts, the apparent conflict with other entries could then be addressed.

In order to resolve a clash between the central legislative authority set out in entry 53 of List I and the power of the Bombay Legislature, the Court explained that the doctrine of pith and substance together with the principle of incidental encroachment may be applied. Although this rule is not particularly useful for interpreting entries 1 and 2, which both appear in List II, it becomes relevant when the federal and provincial lists overlap. Accordingly, if the Bombay Legislature, by granting the City Civil Court the authority to hear and determine every civil suit, was genuinely exercising its own legislative competence, and if that exercise happened to intrude upon the field reserved for the Union under entry 53, such intrusion would be treated as merely incidental. The Court noted that even if the intrusion covered the entire prohibited field, that fact would not be decisive, citing the Judicial Committee’s observation in the Khulna Bank case.

The Khulna Bank decision considered whether the magnitude of the federal field’s invasion mattered once the substance of the statute was identified as money-lending. The Committee answered in the negative, stating that the crucial issue was not how far the law trespassed but whether its true nature remained money-lending rather than, for example, dealing with promissory notes or banking. Once that determination is made, the legislation falls clearly on one side of the constitutional line and can be judged valid or invalid according to its genuine content. The Court also addressed a criticism that this approach failed to give full effect to the wording of Section 100 of the Government of India Act, which sets the order of priority among the three lists. While acknowledging that List I prevails over List III and List III over List II, the Court emphasized that priority must be understood in respect of substance rather than in an absolute prohibition. It held that the federal legislature’s priority does not bar a provincial legislature from legislating on a matter that may incidentally affect a federal item; instead, the substance and ancillary effects of the law must be examined and the enactment assigned to the appropriate list based on its true character.

The Court explained that the method for deciding whether, in its essential character, a law belongs to one legislative list or another was further clarified by a passage that had been quoted with approval from Lefroy’s Treatise on Canadian Constitutional Law in the judgment of the Federal Court in the Bank of Commerce case [[1944] F.C.R. 126, 139.]. The learned writer observed, “It seems quite possible … that a particular Act regarded from one aspect might be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Dominion Parliament.” In other words, the true subject-matter of a statute could vary depending on which aspect of the statute was being considered. The author explained that the term “aspect” should be understood as the point of view of the legislator when drafting the law – that is, the object, purpose and scope that the legislator intended. The language was therefore to be read subjectively, reflecting the legislator’s intention, rather than objectively, reflecting the matter that was ultimately regulated. This principle, as illustrated by the cited cases, required the court to examine the legislation from the perspective of the law-maker in order to determine the correct classification of the enactment.

Applying that principle, the Court found little doubt that the impugned Act, when examined in its essential character, must be placed within List II. The legislators of Bombay had not intended to give the newly created court any authority over matters that fell under List I. Rather, as Section 3 of the Act expressly provided, the legislation was establishing a new court called the Bombay City Court and was granting it general jurisdiction to try all civil suits that lay within specified monetary and territorial limits. The Court concluded that this legislative scheme fell within the powers conferred on the province by entry 2 read with entry 1 of List II. Although one facet of the court’s jurisdiction – namely, the conferment of that jurisdiction – appeared to intrude on the federal field described in entry 53 of List I, the Court held that such an intrusion was not fatal. Even if the Act touched on a federal matter in that respect, the centre would still retain ample scope to exercise its legislative authority under entry 53 with respect to other aspects of judicial jurisdiction and powers.

This conclusion was reinforced by an examination of the legislative practice that had prevailed in the country before the Government of India Act, 1935 was enacted. The Court noted that it was well-established that legislative practice could be considered in determining the scope of legislative powers, a principle that had been recognised in authority such as Croft v. Dunphy [[1933] A.C. 156, 165.]. Historically, the jurisdictional system in the country had involved the creation and organisation of courts that possessed general jurisdiction over all persons and matters, subject only to certain monetary and territorial limits. In addition, special jurisdiction over particular categories of cases could be conferred either on the ordinary courts, supplementing their general jurisdiction, or on specialised tribunals established to deal exclusively with those matters. The various Provincial Civil Court Acts and the provisions of the Civil and Criminal Procedure Codes reflected this pattern, granting courts a broad mandate while delineating specific limits. The Court observed that this long-standing system was likely known to the framers of the 1935 Act and that there was no indication that the framers intended to effect a radical change whereby the power to constitute courts would be removed from the provinces and the jurisdiction would be parsed piecemeal by federal and provincial statutes.

The Civil and Criminal Procedure Codes conferred upon both civil and criminal courts a general jurisdiction, meaning that they possessed the authority to adjudicate any matter concerning any person unless a specific exclusion applied or the matter fell within the exclusive cognizance of a tribunal that was created for a limited or special purpose. The hierarchy of courts was organised primarily according to monetary thresholds and geographic scope rather than according to the particular nature or category of the subject-matter that the courts were empowered to address. It was reasonable to presume that the framers of the Government of India Act, 1935 were aware of this British-Indian system of court organisation, and it could not be readily assumed that they intended to introduce a radical departure whereby the power to constitute courts and to provide for the administration of justice would be transferred to the Provincial Legislatures while the jurisdiction of those courts would be conferred piecemeal by both Federal and Provincial statutes in a manner that was not capable of clear demarcation. The constitutional difficulties that such a scheme would create for legislatures, courts and the public whenever a new court was created—requiring a search through the legislative lists to determine whether the appropriate legislature had validly conferred jurisdiction over a particular matter or the power to make a specific order—must cause one to pause and examine the relevant provisions of the Government of India Act to see whether any provision compelled acceptance of such a novel system. After careful consideration, the judgment concluded that both the language of the statutory provisions and the earlier legislative practice supported the view that the Provincial Legislatures possessed the exclusive authority to constitute and organise courts and to provide for the administration of justice in their provinces, and that they also possessed the power to invest those courts with a general jurisdiction. Regarding the question whether Section 4 of the Act operated as a delegation of legislative power, the judgment fully concurred with the reasoning of the learned brother Das, echoing his observations and reserving the broader question raised by the Attorney-General concerning the extent to which legislatures may delegate their legislative powers to other agencies. The judgment found it unnecessary to resolve that broader issue in the present case, just as in Jatindranath Gupta’s case the decision was based on a narrower ground. Consequently, the High Court was held to have no jurisdiction to hear and determine the first respondent’s suit, and the appeal was allowed.

In this appeal the Court considered a judgment delivered by the High Court of Judicature at Bombay on 29 March 1950 in Suit No. 240 of 1950. That judgment held that Section 4 of the Bombay City Civil Court Act (Bombay Act XL of 1948) was beyond the powers of the Provincial Legislature. The factual backdrop began on 6 February 1950 when the first respondent filed a plaint before the Prothonotary and Senior Master of the High Court, seeking a summary suit against the second respondent for the recovery of a sum of Rs 11,704-2-4 alleged to be due under a promissory note. The suit was instituted in the High Court although a notification dated 20 January 1950, issued under Section 4 of the City Civil Court Act, prescribed that suits whose value did not exceed Rs 25,000 were to be heard solely 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, reasoning that Section 4 of the Act was ultra vires the Provincial Legislature, that the notification issued under that provision was therefore inoperative, and consequently that the High Court possessed jurisdiction to try the suit. Following this decision the first respondent issued summons for judgment against the second respondent. The Advocate-General then moved to implead the State of Bombay as a defendant, and the proceedings were transferred to a Division Bench of the High Court. The Division Bench affirmed the Judge’s view expressed in Chambers and remitted the cause back to him for determination on its merits. Dissatisfied with that outcome, the State of Bombay appealed to the Supreme Court.

The appeal raised two distinct questions. First, whether the Bombay City Civil Court Act exceeded the legislative competence of the Province of Bombay in so far as it dealt with the jurisdiction and powers of the High Court and the City Civil Courts with respect to matters listed in List I of the Seventh Schedule of the Government of India Act 1935. Second, whether Section 4 of the Act was void because it purported to delegate to the Provincial Government a legislative authority to invest the City Civil Court with an expanded jurisdiction. The Bombay Act of 1948, which came into force on 10 May 1948, was enacted to facilitate the establishment of an additional civil court for Greater Bombay, apparently with a view to relieving the congestion of work on the original side of the Bombay High Court. Sections 3, 4 and 12 of that Act provide, in substance, that the State Government may, by notification in the Official Gazette, establish for Greater Bombay a court to be called the Bombay City Civil Court; notwithstanding any other law, such a court shall have jurisdiction to receive, try and dispose of all civil suits and other proceedings whose value does not exceed ten thousand rupees and which arise within Greater Bombay, except those suits or proceedings that are cognisable by the High Court as an Admiralty, testamentary, intestate, matrimonial, insolvency, or any other special jurisdiction, or that fall within the domain of the Small Cause Court. The provision further allows the State Government, after consultation with the High Court, to extend the City Court’s jurisdiction to any suits cognisable by the High Court as a court having testamentary or intestate jurisdiction or for the relief of insolvent debtors.

The statute authorised the City Court to hear any civil suit arising within Greater Bombay, except those that the High Court may hear as a Court of Admiralty, Vice-Admiralty, or Colonial Court of Admiralty. It also excluded suits that the High Court can hear in its testamentary, intestate, or matrimonial jurisdiction. Further exclusions applied to suits for the relief of insolvent debtors, suits under any special law other than the Letters Patent, and suits before the Small Cause Court. The State Government could, after consulting the High Court, issue a notification extending the City Court’s jurisdiction to additional suits. Such extension covered suits that the High Court may hear as a testamentary or intestate court, or for the relief of insolvent debtors. Section four, subject to the exceptions in Section three, empowered the State Government by Gazette notification to vest the City Court with jurisdiction over civil suits arising within Greater Bombay. The jurisdiction was limited to suits whose value did not exceed twenty-five thousand rupees, as specified in the notification. Section twelve declared that, notwithstanding any other law, the High Court could not try suits that fell within the City Court’s jurisdiction. However, the High Court retained the power to remove any such suit for trial by itself for any special reason at any stage.

The High Court considered two questions: the validity of Section four and the constitutionality of the Act’s provisions. It held that Section four was inoperative because it attempted to delegate legislative authority to an external body, rendering any notification issued under it ineffective. Consequently, the notification did not remove the High Court’s jurisdiction to try the suit before it. On the first question, the High Court relied on its earlier decision in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah. It concluded that the Act fell within the legislative competence of the Bombay Legislature. The appellant challenged the High Court’s decision on the second point while accepting its conclusion on the first point. The first respondent agreed with the High Court’s ruling on the second question but disputed its correctness on the first question. The learned Attorney-General argued that the High Court misinterpreted Sections three and four. Reading the two sections together, he said, the legislature gave the City Civil Court an initial pecuniary limit of ten thousand rupees and set an outer ceiling of twenty-five thousand rupees. He further contended that the legislature left to the provincial government the discretion to determine when the jurisdiction could be extended between those two limits. He also submitted that Section four functioned as conditional legislation and therefore did not delegate any legislative power to the provincial government.

In the appeal the Attorney-General argued that the provision known as Section 4 constituted merely a conditional piece of legislation and that, under it, no legislative authority had been transferred to the Provincial Government. The Chief Justice of the lower court rejected that contention, observing that an Act must be interpreted so as to bring its various sections into harmonious effect. He expressed his conviction that it was impossible to read Sections 3 and 4 together in the way the Attorney-General suggested. According to the Chief Justice, the Legislature had never contemplated, nor articulated, any policy regarding whether the newly created City Civil Court should possess a pecuniary jurisdiction exceeding the initial limit of ten thousand rupees. He maintained that no judgment or policy on that point had ever been passed and that Section 4 was not simply a directive instructing the Provincial Government to implement a legislative policy. Rather, he held, Section 4 conferred upon the Provincial Government the power to grant jurisdiction to the Court, effectively allowing the Province to decide whether the Court’s jurisdiction could be increased up to twenty-five thousand rupees. The Court of appeal, however, found this reasoning unconvincing. It held that the Legislature could not have enacted a provision in Section 4 fixing an upper limit of twenty-five thousand rupees without first having considered, and thereby exercised, its legislative will on the question of whether the new Court should be authorised to hear matters of a value greater than ten thousand rupees. The fixation of the maximum pecuniary limit, the Court observed, was the product of a legislative determination; without such a determination the statute could not have specified the outer boundary of the Court’s jurisdiction. The legislative policy concerning the jurisdiction of the new Court was, the Court explained, embodied in Sections 3 and 4 of the Act. Those sections provided that at the outset the Court’s jurisdiction would be confined to cases involving sums up to ten thousand rupees, but that, should circumstances later deem it desirable, the Provincial Government could be authorised, at its discretion, to extend the jurisdiction to cases involving sums up to twenty-five thousand rupees. The Act also stipulated that any such extension would be subject to the exceptions listed in Section 3. Consequently, the Court concluded that the view expressed by the learned Chief Justice—that the Legislature had never applied its mind to the conditions and the amount up to which the new Court could exercise pecuniary jurisdiction—was incorrect. The only element left to the Provincial Government’s discretion was the determination of the circumstances under which the Court would be granted the enhanced jurisdiction.

The Court observed that the statute prescribed that the new court would acquire a larger pecuniary jurisdiction only when the Provincial Government, acting under the conditions laid down by the legislation, decided that such enhancement was appropriate. It emphasized that while the essential policy decisions regarding the scope of the jurisdiction were fixed by the Act, the responsibility for carrying out those policy decisions rested with the Provincial Government. Consequently, the Court held that no exception could be made to the conditional nature of the legislation. The provision, the Court explained, did not give the Provincial Government the authority to create a separate law concerning the pecuniary limits of the new court; rather, it merely delegated to the Government the implementation of the policy already set by the legislature. Accordingly, the section could not be interpreted as conferring a legislative power on the Provincial Government, but only as entrusting it with the execution of the existing legislative scheme.

Turning to precedent, the Court referred to the decision in Queen v. Burah, reported in 5 I.A. 178, where Section 9 of Act XXII of 1869—legislation analogous to Section 4 of the City Civil Court Act—was upheld as intra vires by the Privy Council. Under that provision, the Lieutenant Governor of Bengal was authorized to decide whether the Act, or any part of it, should apply to particular districts, thereby extending the territorial reach of the statute and removing jurisdiction from the High Court in those districts while granting it to a commissioner. An objection had been raised that Section 9 was invalid because it purported to delegate legislative power, which would render it void. The Privy Council rejected this objection, holding that Section 9 fell within the Governor-General’s law-making authority and constituted a form of conditional legislation. The Court noted that the Burah case dealt with an extension of territorial limits, whereas the present matter concerned an extension of pecuniary limits, but it found no substantive distinction between the two scenarios. Accordingly, the present case fell within the principle articulated in Queen v. Burah, cited as 51 I.A. 178. In affirming the validity of Section 9, the Privy Council observed that it is erroneous to regard the powers given to the Lieutenant-Governor as deriving from any legislative authority other than the Governor-General in Council, since the entire operation was directly and immediately under the authority of Act XXII of 1869 itself. The Court explained that the proper legislature had exercised its judgment regarding the place, persons, laws, and powers, and had legislated conditionally on those matters. Once the stipulated conditions were satisfied, the legislation became absolute. The Council further remarked that wherever plenary legislative powers exist on particular subjects—whether in an Imperial or Provincial legislature—those powers may be exercised either absolutely or conditionally, and that legislation conditioned on the use of specific powers or on a limited discretion entrusted to trusted persons is a well-recognised feature of legislative practice.

The Court observed that it is often very convenient to legislate conditionally, and that the British Statute Book contains many examples of such conditional legislation. It could not be assumed that the Imperial Parliament, when it created the Indian Legislature, failed to consider that conditional legislation lay within the legislative authority it periodically granted. Moreover, the Parliament used no express language to exclude the possibility of conditional statutes. The Court then noted that these remarks were directly applicable to the provision contained in Section 4 of the Act under challenge. A clear distinction, the Court explained, exists between delegating the power to make law – which necessarily involves a discretion as to the content of the law – and conferring a power or discretion to execute the law, which must be exercised under and in accordance with the enacted statute. Objections may be raised against the former type of delegation but not against the latter. The Court further referred to the decision of the United States Supreme Court in Field v. Clark, 143 U.S. 649, which, while discussing Locke’s case, 72 Pa. 491, observed that to deem a law inferior because it is conditioned upon a future event would deprive the legislature of the ability to act wisely for the public welfare when the law addresses circumstances that are not yet developed or are impossible to know fully. The Court clarified that the legislature may not surrender its power to make law, yet it may enact a law that delegates authority to ascertain certain facts or states of affairs upon which the law’s own effect depends. To forbid such delegation would halt governmental functions, because useful legislation often depends on matters that the legislative body cannot ascertain within the chambers of law-making and must therefore be investigated externally. The High Court, in support of its reasoning, had relied heavily on the Federal Court’s judgment in Jatindra Nath Gupta v. The Province of Bihar, [1949] F.C.R. 593, and had considered that the present matter fell within the scope of the rule articulated in that decision. The Court, however, found that the Bihar case did not apply to the present controversy. In the Bihar case, the Federal Court examined an Act that, in Section 1, sub-section (3), provided that the Act would remain in force for one year from its commencement, but that the Provincial Government could, by a notification supported by a resolution of the Bihar Legislative Assembly and the assent of the Bihar Legislative Council, extend the Act for an additional year and make any specified modifications. The Court concluded that the proviso involved in the present case was distinct from that situation.

In the earlier judgment referred to, the Court observed that the authority granted by the provision under discussion was considerably broader than the authority that had been vested in the Lieutenant-Governor in the case of Queen v. Burah [5 I.A. 178]. The earlier judgment explained that the provision in question permitted the Provincial Government not only to modify the existing Act but also to re-enact it, thereby giving the Provincial Government a power that went beyond simple administrative adjustment. The Court further highlighted a fundamental distinction articulated in the earlier judgment, namely the difference between delegating a power to make law—which inevitably involves a discretion as to the content of the law—and delegating a power to execute the law, which is to be exercised under and in pursuance of the existing law. The Court stressed that this distinction is a genuine one and must be carefully considered whenever a question of delegated authority arises. To illustrate this point, the Court quoted its own observations that the proviso under attack fell squarely within the realm of delegated legislation and was therefore an improper piece of legislation that must be declared void. The Court reasoned that the proviso amounted not merely to an abdication of legislative authority by the Provincial Legislature but also to the creation of a parallel legislative body capable of enacting a modified version of the Bihar Maintenance of Public Order Act and of providing that the Act should continue for an additional year. A detailed analysis of the proviso, the Court said, confirms this conclusion. The Court explained that the substantive purpose of the proviso was to empower the Provincial Government to issue a notification stating that the Provincial Act would remain in force for another year, together with any modifications that might be specified in that notification. The Court observed that such modification of a statute is essentially a partial re-enactment. It involves the power to declare that certain portions of the existing statute are no longer part of the law and that a statute consisting of a different set of sections has now been enacted. In exercising the power to modify, the Provincial Government must exercise a legislative discretion, deciding whether particular sections should continue to have effect or should be removed. The power to modify may even include the power to repeal parts of the statute. Consequently, a modified statute is not the same as the original statute; it is, in effect, a new Act, and logically speaking, this process amounts to the enactment of new law.

The Court expressed inability to see how the observations made concerning the Bihar statute could be relied upon by the High Court in support of its decision that Section 4 of the Bombay City Civil Court Act was invalid. The Court emphasized that the two provisions under discussion were not analogous in any respect, and therefore the respondent could not draw any support from the earlier decision. In the concluding portion of the judgment under appeal, the learned Chief Justice was quoted as observing that, when the same analytical tests are applied to the City Civil Court Act, it becomes apparent that the Legislature, in exercising its legislative power, established a Civil Court with a limited jurisdiction under Section 5 of the Act and did not create a court with jurisdiction exceeding ten thousand rupees. The Legislature further provided that, should circumstances require, the Provincial Government could be given the authority under Section 4 to increase the court’s jurisdiction up to twenty-five thousand rupees, a power that, the Court noted, could historically be exercised only by the Legislature itself. The Court concluded that the observations of the learned Chief Justice were based on a construction of Sections 3 and 4 of the Act that these sections could not legitimately support.

In exercising its legislative authority, the legislature created a Civil Court for Greater Bombay that was given a limited pecuniary jurisdiction under Section 5 of the Act. The statute expressly limited the court’s jurisdiction to matters not exceeding ten thousand rupees. The same Act, through Section 4, authorized the Provincial Government to increase that jurisdiction to a maximum of twenty-five thousand rupees when circumstances warranted. The Court observed that the power conferred on the Provincial Government to raise the jurisdiction was a power that, under the Constitution, could ordinarily be exercised only by the legislature itself.

The Court further explained that the observations relied upon by the High Court were founded upon an improper interpretation of Sections 3 and 4 of the Act. The legislature had, at the outset, determined that the Civil Court would have a pecuniary jurisdiction of up to ten thousand rupees and that it could be extended to twenty-five thousand rupees when required. The role of the Provincial Government was limited to determining when those circumstances existed. The extent of the jurisdiction was clearly specified in Section 4; it was not left to the Provincial Government’s discretionary will to assign any amount of pecuniary jurisdiction it might choose. The enhancement of jurisdiction could occur only by operation of the legislative power embodied in Section 4 and only after a formal notification was issued by the Provincial Government, making the extension conditional upon that notification. Consequently, the Court held that the High Court was mistaken in declaring Section 4 of the City Civil Court Act void and ultra-vires the Provincial Legislature. The notification made under Section 4 was therefore effective, and it was unnecessary to consider the Attorney-General’s argument that, even if Section 4 constituted a delegation of legislative power, it remained valid. The next issue was whether the Act itself exceeded the powers of the Bombay Legislature. To assess the contention raised by counsel, the Court set out the relevant provisions of the Government of India Act, 1935, namely Section 100 and the entries in the Seventh Schedule – entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III – which read as follows: “Section 100(1) Notwithstanding anything in the two next succeeding sub-sections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the ‘Federal Legislative List’). (2) Notwithstanding anything in the next succeeding sub-section…”.

The Court explained that under Section 100 of the Government of India Act, 1935 the Federal Legislature possessed the authority to enact laws on any subject that appeared in List III of the Seventh Schedule, which was termed the “Concurrent Legislative List”. In addition, and subject to the limitation set out in the preceding sub-section, a Provincial Legislature also shared that concurrent power with respect to the same matters in List III. The Court then turned to the next sub-section, which provided that, subject to the earlier two sub-sections, the Provincial Legislature alone could legislate for a province or any part of a province on any matter that was enumerated in List II of the Seventh Schedule, known as the “Provincial Legislative List”, while the Federal Legislature was expressly barred from doing so. Finally, the Court noted that the Federal Legislature retained the power to make laws concerning subjects that were placed in the Provincial Legislative List, but only insofar as those laws did not apply to a province or any part of a province. This three-tiered allocation of legislative competence formed the framework for analysing the statutory scheme of the impugned Act.

Having set out the constitutional backdrop, the Court listed the specific entries relevant to the dispute. Under List I, entry 23 dealt with “cheques, bills of exchange, promissory notes and other like instruments”, and entry 55 concerned “the jurisdiction and powers of all courts, except the Federal Court, with respect to any matters in this list, and, to the extent expressly authorised by Part IX of the Act, the enlargement of the appellate jurisdiction of the Federal Court together with the conferring of supplemental powers”. List II contained entry 1, which covered “public order (excluding the use of His Majesty’s naval, military or air forces in aid of the civil power); the administration of justice; the constitution and organisation of all courts, except the Federal Court, and the fees taken therein; preventive detention for reasons connected with the maintenance of public order; and persons subject to such detention”. Entry 2 of List II dealt with “the jurisdiction and powers of all courts except the Federal Court with respect to any matters in this list and the procedure in Rent and Revenue Courts”. List III comprised entry 4, which related to “civil procedure, including the law of limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act; the recovery in a Governor’s Province or a Chief Commissioner’s Province of claims in respect of taxes and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province”. Entry 15 of List III likewise concerned “the jurisdiction and powers of all courts except the Federal Court with respect to any matters in this list”. The Court then turned to the contention raised by counsel for the respondent, Mr Seervai, who argued that Section 3 of the impugned Act was void because it intruded upon the exclusive legislative competence of the centre under List I by granting the new court jurisdiction over “all cases of a civil nature”. He submitted that the phrase “all cases of a civil nature” inevitably brought within the ambit of the Act suits concerning subjects listed in List I. Moreover, he emphasized that the three analogous entries—entry 53 in List I, entry 2 in List II and entry 15 in List III—demonstrated that each legislature was empowered, respectively, to make laws relating to the jurisdiction and powers of courts for the subjects allocated to them, and that this scheme should govern the interpretation of the contested provision.

The Court explained that, according to Section 100 of the Constitution Act, the Provincial Legislature did not possess authority to enact any law that granted jurisdiction to courts over matters that fell within List I. Consequently, only the Federal Legislature could legislate on the jurisdiction and powers of courts concerning subjects listed in List I. In contrast, for matters enumerated in the Provincial List, the jurisdiction and powers of courts could be determined solely by legislation passed by the Provincial Legislature. Where the subject matter was listed in List III, both the Federal and the Provincial Legislatures were empowered to make laws concerning the jurisdiction and powers of courts. The Court noted that the exceptions and the proviso to Section 3 of the City Civil Act expressly indicated that jurisdiction over subjects on which the Provincial Legislature lacked competence was nevertheless conferred on the newly created court. Section 12 of the same Act, which removed all jurisdiction of the High Court over matters that fell within the jurisdiction of the City Civil Court, was challenged on the same grounds. Regarding the legislative authority granted under entry I of List II to the Provincial Legislature, it was argued that this broad power was nevertheless circumscribed by the three entries previously mentioned, and that legislation under this entry could be limited to the establishment and organization of courts, not to the definition of the powers of those courts. The learned Attorney-General, however, contended that the Act was intra-vesa for the Bombay Legislature under entry 1 of List II and also under entries 4 and 15 of List III, having obtained the assent of the Governor-General. He maintained that the Provincial Legislature possessed exclusive legislative power over the administration of justice, the constitution and the organization of all courts, and that this exclusive power necessarily included the authority to legislate on the jurisdiction of courts that it established and constituted. Accordingly, the Attorney-General argued that the impugned legislation, being fundamentally concerned with the administration of justice, could not be held ultra-vires even if it encroached upon a field of legislation ordinarily reserved to the Federal Legislature. With respect to entry 53 of List I, entry 2 of List II and entry 15 of List III of the Schedule, it was submitted that these provisions granted each respective Legislature the power to confer special jurisdiction on existing courts over particular subjects, but only when such jurisdiction was deemed necessary.

In this case, the Court agreed with the view expressed by the Chief Justice of Bombay that the power of the Bombay Legislature under entry 1 of List II is valid. The Chief Justice, while deciding Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah, cited Bombay Law Reporter volume 51, page 86, and said as follows: “If, therefore, the Act deals with administration of justice and constitutes a court for that purpose and confers ordinary civil jurisdiction upon it, in my opinion, the legislation clearly falls within the legislative competence of the Provincial Legislature and is covered by item 1 of List II of Schedule 7. That item expressly confers upon the Provincial Legislature the power to legislate with regard to the administration of justice and the constitution and organization of all courts except the Federal Court. It is difficult to imagine how a court can be constituted without any jurisdiction, and if Parliament has made the administration of justice exclusively upon the Provincial Legislature the power to constitute and organize all courts, it must follow, that the power is given to the Provincial Legislature to confer the ordinary civil jurisdiction upon the courts to carry on with their work. Item 2 of List II deals with jurisdiction and power of all courts except the Federal Court with respect to any of the matters in this list and Mr. Mistree’s argument is that item 1 is limited and conditioned by item 2 and what he contends is that the only power that the Provincial Legislature has is undoubtedly to create courts, but to confer upon them only such jurisdiction as relates to items comprised in List II. I am unable to accept that contention or that interpretation of List II in Schedule 7. Each item in List II is an independent item, supplementary of each other, and not limited by each other in any way. Item 1 having given the general power to the Provincial Legislature with regard to all matters of administration of justice and with regard to the constitution and organization of all courts, further gives the power to the Legislature to confer special jurisdiction, if needs be, and special power, if needs be, to these courts with regard to any of the items mentioned in List II. It is impossible to read item 2 as curtailing and restricting the very wide power with regard to administration of justice given to the Provincial Legislature under item 1. Similarly in List I the Federal Legislature has been given the power under item 53 to confer jurisdiction and power upon any court with regard to matters falling under any of the items in that list, and, therefore, it would be competent to the Federal Legislature to confer any special jurisdiction or power which it thought proper upon any court with regard to suits on promissory notes or matters arising under the Negotiable Instruments Act …”. The Court found that each entry in List II stands alone and that the general authority in item 1 includes the ability to assign ordinary civil jurisdiction and, when necessary, to grant additional special powers. Consequently, the Court concluded that the legislative power conferred on the Provincial Legislature by item 1 of List II is of the widest amplitude, covering both the creation of courts and the provision of their jurisdiction and powers.

In the judgment, it was observed that the provision in entry 1 of List II grants the Provincial Legislature authority expressed in the broad terms “administration of justice and constitution and organization of all courts.” The Court noted that it had not been denied that such wording necessarily includes legislative power concerning the jurisdiction and powers of courts created for the purpose of administering justice. The language was considered sufficient to empower the Province to regulate the entire machinery related to the administration of justice within the Province. The Court explained that any legislation dealing with administration of justice and the constitution of courts would be ineffective and incomplete unless the courts established under that legislation were also endowed with jurisdiction and authority to hear and determine cases. It was difficult to imagine a statute on administration of justice that omitted a definition of the jurisdiction and powers of the courts, because without such definition the statute would be like a body without a soul, rendering the enactment a mere formality without substance. By its own terms, such a statute could not confer any power or jurisdiction on a court; it would have to rely on another source of authority to become operative. The Court observed that, to its knowledge, legislative practice and history contain no example of an enactment that operates in this manner. Consequently, the Parliament’s decision to make administration of justice a provincial subject could not be interpreted as giving the Provincial Legislature a power that is ineffective or useless. The Court then addressed the argument advanced by counsel for the respondent, who, following Mr. Mistree before the High Court of Bombay, contended that entry 1 of List II only authorised the Province to establish a court and determine its constitution, but not to legislate on the court’s jurisdiction and powers. The Court analysed that position, noting that under that view a statute would list the court’s name, the number of judges, the method of appointment and salaries, and then stop, leaving jurisdiction to be provided later by statutes of 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. Counsel argued that this result followed naturally from a federal constitution with divided powers, and that entries 53, 2 and 15 limited the wide power conferred by entry 1 of List II. The Court found this contention difficult to accept.

In this case, the Court explained that to accept the argument presented would require a conclusion that the Provincial Legislature, acting under item 2 of List II, possessed the broadest possible power to legislate on the administration of justice, the constitution, and the organization of courts. Although this field had been set aside as the exclusive domain of the province, the argument suggested that the legislature could only use the power to create a court that lacked any ability to function on its own. According to that view, the court could become an effective instrument for administering justice only when other statutes, enacted under powers given by different items in the three lists, supplied the necessary jurisdiction. The Court stated that it could not read items 53 of List I, 2 of List II, and 15 of List III as limitations on the legislative authority that the province enjoyed under item 1 of List II. Interpreting the statute in that restrictive way would, the Court held, contradict the clear wording of item 1 of List II and would be opposed to the purpose of that provision, which placed the administration of justice within the provincial sphere. The Court observed that no other legislature had been granted the power to create a court. A court that possessed no powers or jurisdiction would be an anomaly because it could not fulfil the function of administering justice, and a law that established such a court could not be described as legislation on the subject of administration of justice. The Court further noted the fundamental principle of constitutional construction that everything required for the exercise of a power must be included in the grant of that power. Consequently, everything necessary for the effective exercise of legislative authority must be deemed to be conferred by the Constitution together with that authority.

The Court continued by pointing out that, when exercising the legislative power given under item 1 of List II, a Provincial Legislature was capable of altering the constitution of existing courts, abolishing courts, reorganising them, and establishing new courts. If the construction advocated by counsel Mr Seervai were adopted, the Court reasoned, any existing courts that were re-established or reorganised by the province would remain unable to operate until complementary legislation under item 53 of List I, item 2 of List II, or item 15 of List III was simultaneously enacted. The Court expressed doubt that Parliament had intended such an outcome. The Court then turned to another argument made by Mr Seervai, who contended 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 ineffective. In other words, if the Provincial Legislature could create a court of general jurisdiction capable of hearing all causes on subjects whose legislative authority was divided among the three lists, then the legislative powers assigned to the Federal Legislature under item 53 of List I, to the Provincial Legislature under item 2 of List II, and to both legislatures under item 15 of List III would become meaningless.

The argument that giving power to both Legislatures under item fifteen of List three would be purposeless was rejected. In the view expressed, that argument lacked validity because its underlying assumptions were unsound. The three lists of subjects set out in Schedule seven were not prepared with scientific exactness; consequently the items contained in the lists overlap with one another. The purpose behind drawing up the lists was to ensure that every possible legislative authority fell within the scope of one of the lists.

When Parliament designated the administration of justice as a provincial subject and granted the Provincial Legislature authority to legislate on that subject as well as on the constitution and organization of courts, it consequently gave the Provincial Legislature an effective power that embraced the authority to make laws concerning the jurisdiction of courts. As a result, the Provincial Legislature could create a court possessing general jurisdiction to administer justice over all matters presented before it, provided that such jurisdiction operated within defined territorial and monetary limits and was subject to the condition that the general jurisdiction might be expressly or impliedly removed by the provisions of other statutes. Because Parliament had divided the field of legislation between the two Legislatures, it logically concluded that a complementary provision was required to give each Legislature a specific legislative power concerning the jurisdiction and powers of courts with respect to subjects that fell within its exclusive legislative field. The reasoning was that if a Legislature could legislate exclusively on particular subjects, it should, as a necessary consequence, also possess the power to legislate on the jurisdiction and authority of the courts dealing with those subjects. This power was conferred by entries fifty-three of List one, two of List two and fifteen of List three, as previously mentioned. Similar consequential entries, namely forty-two and ninety-nine of List one, thirty-seven and forty-two of List two, and twenty-five and thirty-six of List three, operate in the same way.

Accordingly, each Legislature was competent to confer special powers on courts and to create special jurisdictions for those courts within the respective fields of legislation assigned to them. Parliament was well aware of instances where it had granted powers and jurisdiction to courts to hear cases on specific subjects. Such powers had previously been given to various courts for testamentary and intestate matters, admiralty jurisdiction, matters under the Indian Companies Act, the Succession Act, the Guardians and Wards Act, as well as under various Rent Acts and statutes dealing with the relief of indebtedness. Because the legislative powers were divided among different subjects, Parliament granted under item fifty-three of List one, item two of List two and item fifteen of List three the authority to the respective Legislatures not only to legislate on those subjects but also to determine the jurisdiction and powers of the courts hearing those matters. The conferment of legislative powers to create special jurisdiction concerning particular subjects does not

The Court observed that the authority granted to the Provincial Legislature by item 1 of List II is not reduced in any manner by the special legislative powers that exist in item 53 of List I, item 2 of List II and item 15 of List III. It explained that once a Legislature exercises the special power found in any of those three entries, the matters that arise under the subject covered by that entry must be dealt with only in the jurisdiction created by the statute that implements the special power, and such matters cannot be heard by courts of general jurisdiction that are normally responsible for the ordinary administration of justice. In the terms of Section 9 of the Code of Civil Procedure, the jurisdiction of the ordinary courts becomes excluded by those statutes. The Court further stressed that this limitation operates only with respect to the specific subjects enumerated in the respective list entries and does not affect the broader competence of the Provincial Legislature to legislate on all other civil matters. Accordingly, the Court was of the view that under item 1 of List II the Provincial Legislature possesses full authority not only to constitute courts for the purpose of administering justice but also to grant those courts jurisdiction over every civil cause. That authority, the Court held, is not narrowed or limited by the legislative competence that the Central and Provincial Legislatures enjoy under items 53, 2 and 15 of the three lists.

The Court further explained that the three entries in question merely empower the respective Legislatures to enact laws concerning jurisdiction and powers of courts that are intended to hear cases falling within the particular subjects that lie within their exclusive legislative field. In other words, the power conferred by items 53, 2 and 15 is limited to the creation of special jurisdictions. The Court said that this reading of the entries is consistent with the overall scheme of the Constitution, that it harmonises the various provisions in the lists, and that it prevents any of the entries from becoming ineffective. By contrast, the interpretation advanced by Mr Seervai would essentially render the power of the Provincial Legislature under item 1 of List II meaningless. The essential question, the Court noted, was whether item 1 of List II should be given a restricted meaning that would make it ineffective, or whether a restricted meaning should instead be placed on items 53, 2 and 15. Applying the principles of statutory construction and legislative intent, the Court found no difficulty in adopting the latter approach. The Court emphasized that the power to define special jurisdictions is not an unrestricted authority to encroach upon the general jurisdiction conferred by item 1; it is confined to the subjects that each Legislature has exclusive authority over, leaving the Provincial Legislature’s general power intact. Finally, the Court rejected the contention that Section 12 of the Act was void because it purported to remove the High Court’s jurisdiction over matters listed in List I of the Seventh Schedule. In view of the construction placed on item 1 of List II, that argument fails. The Court reasoned that if the Legislature can create a new court and assign jurisdiction to it, it necessarily possesses the power to withdraw jurisdiction from existing courts. Moreover, Section 3 of the Bombay City Civil Court Act expressly excludes from the new court’s jurisdiction all cases that the High Court may hear under any special law.

The Court observed that a “special law” has been defined as a law that applies to a particular subject, and therefore, whenever the Federal Legislature, by virtue of List 1 of the Seventh Schedule, enacts a law directing that a specific case must be heard by the High Court, Section 5 of the Bombay City Civil Court Act cannot in any manner diminish the jurisdiction of that High Court. From this construction the Court concluded that the Bombay City Civil Court Act is a statute that falls wholly within the legislative competence of the Province under item 1 of List II. Consequently, the validity of the Act cannot be defeated merely because it incidentally touches upon matters that lie in other fields of legislation. The Act does not deal with any subject enumerated in List I, and thus the Provincial Legislature has not encroached upon the powers that the Constitution reserves for the centre. Given this conclusion, the Court found it unnecessary to address the other points raised by the Attorney-General. Accordingly, the Court allowed the appeal filed by the Government of Bombay and set aside the High Court’s judgment which had held Section 4 of the City Civil Court Act (XL of 1948) to be void. In the circumstances, each party was ordered to bear its own costs of the appeal, and the opinion was delivered by Justice Mukherjea.

Justice Mukherjea further stated that, in his view, the appeal should be allowed and he largely agreed with the reasoning adopted by his brother, Justice Mahajan. He added that, because of the constitutional significance of the questions presented, he wished to make some additional observations. He identified two principal issues for consideration. The first issue concerned whether Section 4 of the Bombay City Civil Court Act, 1948, is void and inoperative because it allegedly amounts to a delegation of legislative powers by the Provincial Legislature to the Provincial Government of Bombay. The Bombay High Court had answered this question affirmatively, and the judgment under appeal was based entirely on that finding. The learned Attorney-General, appearing for the State of Bombay, challenged the authority of that decision in support of the present appeal. On the other side, counsel for the respondents, while seeking to repulse the Attorney-General’s contention, did not attempt to endorse the judgment under appeal on a broader ground that, if accepted, would render the entire Bombay City Civil Court Act void as an unlawful intrusion by the Provincial Legislature into the field of legislation reserved for the centre under List I of Schedule 7 to the Government of India Act, 1935. Regarding the first point, the Court agreed that the appellant’s contention was sound and must prevail. It held without hesitation that the Legislature, in empowering the Provincial Government to invest the City Court, by notification, with jurisdiction, had not delegated its legislative authority to that Government; the provision merely related to the enforcement of a policy that the Legislature itself had established.

In the matter before the Court, the provision that allowed the Provincial Government to extend the pecuniary jurisdiction of the City Court to an amount not exceeding twenty-five thousand rupees, as specified in a notification, was held not to constitute a delegation of legislative authority. The provision was described as merely enforcing a policy that the Legislature itself had established. The Court noted that the legislation was complete when it authorized the Provincial Government to increase the monetary jurisdiction of the City Court, but only up to a ceiling that the statute expressly fixed. Accordingly, the role of the Provincial Government was not to create new law but to implement the Legislature’s will by deciding the time and the extent, within the legislature-prescribed limits, to which the court’s jurisdiction should be enlarged. This was characterised as a form of conditional legislation, falling within the principle articulated by the Judicial Committee in The Queen v. Burah (5 I.A. 178), where the effectiveness of a legal provision depends upon the determination of certain facts or conditions by an external authority.

The Court observed that the judges of the Bombay High Court, in reaching their decision on this point, appeared to have been influenced, at least in part, by the Federal Court’s ruling in Jatindranath Gupta v. Province of Bihar ([1949] F.C.R. 596). Counsel for the respondents had relied on that precedent. The speaker, having participated in the majority decision of that case and having delivered a separate judgment, clarified that nothing in his own judgment supported the respondents’ contention. Citing the well-known American decision in Locke’s appeal (13 American Reports 716), the speaker reiterated that while a legislature may not delegate its law-making power, it may enact a law that delegates the authority to determine certain facts or states of affairs on which the law’s operation will depend. The prohibition against delegation, therefore, does not apply to legislation that is otherwise complete, even if its operation is contingent upon facts to be ascertained by an external body. The dispute in the Bihar case involved the validity of a proviso attached to Section 1, sub-section (3) of the Bihar Maintenance of Public Order Act. That sub-section stipulated that the Act would remain in force for one year from its commencement. The proviso added that the Provincial Government, by notification following a resolution of the Bihar Legislative Assembly and agreement of the Bihar Legislative Council, could extend the Act for an additional year and, if necessary, specify any modifications in the notification. The speaker indicated that Mr. Seervai would have been reasonably correct in invoking the Bihar decision as authority in his argument.

In this case the Court observed that an argument could be made in the advocate’s favour if the proviso attached to the legislation merely empowered the Provincial Government, after satisfying the conditions set out in the proviso, to extend the operation of the Act for one additional year, the maximum period having been fixed by the Legislature itself. The Court noted, however, that the wording of the proviso went further; it authorised the Provincial Government, at the end of the first year, not only to decide whether the Act should continue for another year but also to determine whether the Act should be altered in any manner. Counsel for the Province of Bihar conceded that authorising another body to modify a statute is equivalent to conferring legislative power on that body. That counsel contended that the power to modify the statute could be severed from the power to extend its duration, and that if one part of the proviso were held invalid, the remaining part could still operate. The Court replied that, in the language of the statute, the two provisions were so inter-related that they could not be separated; the validity of the entire proviso depended on the relationship between the two powers. The Court further stated that the factual situation of the present matter differed from the facts in Jatindranath Gupta’s case, and therefore the principle applied in that earlier decision could not be invoked here. The Court also remarked that a broader question—whether a Provincial Legislature, exercising powers within the limits prescribed by the Imperial Parliament in the Government of India Act, 1935, could delegate any of its legislative functions to an external authority as it deemed appropriate—was neither raised nor decided in Jatindranath Gupta’s case, and that the Attorney-General had not properly invited a final ruling on that issue, so the Court refrained from expressing any opinion. The second point raised was more complex. The Bombay High Court had decided against the respondents on the basis of an earlier pronouncement of the same Court in Mulchand v. Raman. Counsel for the respondents sought to attack the correctness of that earlier decision, which the judges had treated as binding in the present case. The substantive contention of counsel was that the Bombay City Civil Court Act, a piece of provincial legislation, was ultra vires because it purported to grant the newly created City Court jurisdiction to receive, try and dispose of “all suits and other proceedings of a civil nature,” subject only to certain exceptions specified in the various sub-sections of Section 3. It was argued that the phrase “all suits of a civil nature” was sufficiently broad to include suits concerning matters listed in List I of the Seventh Schedule of the Constitution Act, matters that, under the Constitution, are within the exclusive competence of the Central Legislature.

In this case the Court examined the contention that the Bombay City Civil Court Act, by granting the City Court jurisdiction to receive, try and dispose of “all suits and other proceedings of a civil nature,” over-reached the powers of the Provincial Legislature because entry 53 of List I of the Constitution reserves to the Central Legislature the authority to confer jurisdiction on courts for matters falling within that entry. The argument further asserted that the Provincial Legislature is empowered to give all courts, except the Federal Court, jurisdiction over any matter listed in the Provincial List, and that it may also exercise comparable powers over subjects enumerated in the Concurrent List pursuant to Article 15 of List III, provided that the conditions laid down in Section 107 of the Act are satisfied. However, it was submitted that the scope of Section 3 of the Bombay City Civil Court Act is not limited solely to matters in Lists II and III; its language is capable of embracing subjects that fall within List I as well. Moreover, the argument emphasized that the various subjects both within and outside the provincial and concurrent fields addressed by Section 3 are so closely intertwined that they cannot be severed or clearly demarcated, and therefore the whole Act should be held ultra vires of the Constitution.

The learned Attorney-General responded by pointing out that Item 1 of the Provincial List includes the expressions “the administration of justice and constitution and organization of all courts except the Federal Court.” These expressions, the Attorney-General argued, plainly encompass the power to confer general jurisdiction on courts created by the Provincial Legislature, a power essential for the courts to function. He further observed that Item 2 of the Provincial List, which mentions “jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List,” does not limit or diminish the ordinary meaning of the phrases “administration of justice” and “constitution of courts” found in Item 1. It therefore follows that the words “administration of justice” in Item 1, unless expressly curtailed, are sufficiently broad to enable the Provincial Legislature to regulate the entire machinery of justice, including the authority to assign jurisdiction.

The Court noted that Section 92 of the North America Act assigns exclusive powers to Provincial Legislatures, and clause (14) of that section describes “the administration of justice in the Provinces” as including “the constitution, maintenance and organization of Provincial Courts.” In interpreting that provision, Canadian authorities have held that the phrases “constitution, maintenance and organization of courts” clearly include the power to define the territorial and other aspects of court jurisdiction, as affirmed in Re County Courts of British Columbia (21 S.C.R. 446). Counsel for the petitioner argued that such a broad construction might be the normal meaning of the terms if they were read in isolation. However, he maintained that when Items 1 and 2 of the Provincial List are read together, it is unavoidable to conclude that the expressions “administration of justice and constitution of courts” do not automatically incorporate “jurisdiction and powers of courts,” which are dealt with separately under Item 2. The Court therefore indicated that the proper approach to determining the scope of the Provincial Legislature’s power to confer jurisdiction must consider Item 2 rather than relying solely on the language of Item 1.

In this case, the Court observed that the phrase “administration of justice and constitution of courts” listed in Item 1 of the Provincial List does not encompass “jurisdiction and powers of courts,” because those matters are separately addressed under Item 2. Consequently, to determine the scope of the Provincial Legislature’s authority to assign jurisdiction to courts, the relevant provision is Item 2, not Item 1. The Court found the argument that the two items should be read as mutually exclusive to be plainly untenable. It agreed with counsel for the State that different subjects appearing in the same legislative list should not be interpreted as excluding one another. As Sir Maurice Gwyer remarked in The United Provinces v. Atiqa Begum [[1940] F.C.R. 110 at p. 134], the subjects in the three legislative lists are not defined with scientific precision, and it would be virtually impossible to draft each item in the Provincial List so as to make it exclusive of every other item. Parliament therefore adopted broad, comprehensive categories, describing each with general terminology. The Court therefore held that none of the items should be read narrowly; rather, each general term should be understood to include all ancillary or subsidiary matters that can fairly and reasonably be said to fall within it. Since there can be no conflict between two items in the same list, there is no justification for restricting the natural meaning of one merely because the same subject might, in some aspect, lie within the scope of the other. However, a difficulty arises when examining entry 53 of List I, which grants the Central Legislature the power to legislate on the jurisdiction and powers of all courts, except the Federal Court, concerning any matters in List I. If Item 1 of the Provincial List were construed to permit the Provincial Legislature to give a court jurisdiction over all subjects, regardless of the list in which they appear, a direct conflict would emerge between Item 1 of the Provincial List and Item 53 of the Central List. Any provincial enactment that infringed upon this exclusive central field would be void under Section 100 of the Constitution Act. To avoid such a conflict, a harmonious construction is required. The Court cited the Privy Council in Citizens Insurance Company of Canada v. Parsons [7 A.C. 96 at p. 109], stating that it could not have been intended for a conflict to exist, and therefore the two sections must be read together, allowing the language of one to be interpreted and, where necessary, modified by the other.

The Court observed that counsel Mr Seervai proposed to resolve the apparent inconsistency by interpreting the words “administration of justice and constitution of courts” appearing in entry 1 of the Provincial List as excluding any reference to the jurisdiction of those courts. He argued that the Provincial Legislature is empowered merely to create or constitute courts, while the authority to hear cases must flow either from the Central Legislature or from the Provincial Legislature in accordance with the subject matter to which the jurisdiction pertains. Under his view, the Provincial Legislature could assign jurisdiction over matters listed in List II, the Central Legislature could assign jurisdiction over subjects enumerated in List I, and for items in the Concurrent List either legislature could legislate, subject to the limitations set out in Section 107 of the Constitution Act.

The Court rejected this line of reasoning as untenable. It noted that the Constitution grants the exclusive right to establish courts and to provide the entire system of administration of justice to the Provincial Legislature. While 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 Act of 1935 does not confer a similar power on the Central Legislature; only the Provincial Legislature may create courts. The term “court” is understood to mean a place where judicial justice is administered. Merely appointing judges, appointing officers, or designating a venue for judges does not by itself constitute a court. A court must possess the jurisdiction to adjudicate cases, and the very constitution of a court inevitably includes that jurisdiction, as explained in Clement’s Canadian Constitution (3rd edition, p. 527). Accepting Mr Seervai’s contention would lead to the absurd result that a civil court established by a Provincial Legislature could exercise jurisdiction only over matters falling within the Provincial List, and would be powerless to hear cases concerning any subject listed in List I unless the appropriate legislature expressly conferred that authority. Consequently, an ordinary Provincial civil court could entertain claims for money but could not entertain a suit on a promissory note or a claim for corporation tax, since negotiable instruments and corporation tax belong to the Central List. The Court held that such an outcome was not intended by the Constitution. Accordingly, the proper method to avert the conflict is to interpret entry 1 of the Provincial List together with the three related entries—entry 53 of List I, entry 2 of List II, and entry 15 of List III—so that the language of each is read in harmony with the others.

The Court examined the apparent conflict among entry 53 of List I, entry 2 of List II and entry 15 of List III, and explained that the proper approach was to read these provisions together and to interpret each by reference to the others. Entry 1 of List II employed the terms “administration of justice and constitution of all courts” in a broad sense, without specifying any particular subject matter to which the administration of justice might relate or for which a court might be created. Consequently, that entry could be legitimately understood as conferring a general jurisdiction that allowed courts to decide any case not limited to a specific subject. By contrast, the three other entries dealt with particular matters enumerated in the three Lists and contemplated the vesting of jurisdiction in courts solely for those specific items, thereby granting an exclusive, limited jurisdiction. Thus, one set of provisions reflected a “general” jurisdiction as implied by the phrase “administration of justice,” whereas the other three provided a “particular” jurisdiction confined to certain matters. The Court concurred with Justice Patanjali Sastri that a useful method for determining the scope of a legislative topic is to consider how that topic has traditionally been treated in the country’s legislative practice, citing Croft v. Dunphy, [1933] A.C. 156. Applying that test supported the interpretation proposed. The distinction between general and particular jurisdiction had long been recognised in legislative practice both before and after the Constitution Act 1935. Historically, civil courts of various classes were organized according to their pecuniary limits and were empowered to entertain all civil suits within defined localities. Particular jurisdiction was additionally granted to certain courts to try cases concerning specific matters, such as insolvency, probate or guardianship proceedings, compulsory acquisition of land, disputes arising under Rent Acts, statutes curbing excessive interest rates, or providing relief to rural debtors. Similar special jurisdictions existed in criminal law.

The Court held that, with the general-versus-special distinction in mind, the various entries in the Legislative Lists could be interpreted without difficulty. The overall design of the Constitution Act 1935 was to vest the authority to establish courts in the Provincial Legislature. The Provincial Legislature could therefore grant the courts it created a general jurisdiction to adjudicate all matters that, under the law of the land, were triable in a court of law, and such powers were exercised under entry 1 of List II. If the Central

When either the Central Legislature or a Provincial Legislature decides to give a particular court special jurisdiction over matters that are listed in their respective legislative lists, that power may be exercised under the three entries that have been previously described. The use of such powers by the Central Government does not clash with the authority that the Provincial Legislature possesses under entry 1 of List II, because the two sets of powers operate in separate domains. The term “general” must always be understood as being opposite to “special” or exclusive. Consequently, if the Central Legislature assigns a specific jurisdiction to a court concerning a Central matter, that matter stops being a general matter; the court that normally exercises general jurisdiction will no longer handle that particular subject, but its overall general jurisdiction remains unchanged. The scope of general jurisdiction is inherently vague and cannot be exhaustively listed. Because of this inherent indeterminacy, it is unnecessary to invoke the doctrine of “pith and substance” to avoid any alleged incidental intrusion by a Provincial Legislature into Central subjects when granting jurisdiction to courts. If the word “jurisdiction” in entry 53 of List I refers only to special jurisdiction, then the Provincial Legislature’s conferral of general jurisdiction under entry 1 of List II cannot even incidentally encroach upon that special jurisdiction. As already noted, what is designated as “special” automatically ceases to belong to the “general” category, so no conflict can arise.

The discussion may be illuminated by looking at the Canadian constitutional framework, where the general pattern is that the administration of justice throughout Canada is carried out by provincial courts. Subject to the residual authority that the Dominion Parliament retains under Section 101 of the North America Act, the Constitution assigns to the provinces the exclusive power to manage the administration of justice, including the establishment, maintenance, constitution and organization of courts. Unlike the Indian system, there is no provincial limitation that mirrors the division between subjects of the Dominion Parliament and those of the provincial legislatures. Although the Canadian Constitution does not contain an entry 53 comparable to that of the Indian List I, judicial decisions have affirmed that the Dominion Parliament may impose jurisdiction on provincial courts over Dominion matters. It is possible that the British Parliament, when drafting the provisions on administration of justice and court jurisdiction in the Government of India Act 1935, sought to adopt the Canadian model with modifications it deemed appropriate. However, speculating on the intention behind those provisions is unnecessary. For the reasons set out above, the judgment concludes that the decision of the Bombay High Court is correct.

The Court held that the decision rendered in Mulchand v. Raman [51 Bom. L.R. 86] was correct and therefore the argument advanced by counsel Seervai must fail. Consequently, the appeal was allowed and the judgment of the High Court was set aside, as recorded by Das, J. A second judge concurred, stating that the appeal should indeed be allowed and, because the questions raised were of considerable importance, he deemed it appropriate to set out the reasons for reaching that conclusion. The material facts, which are not contested, can be summarised as follows: on 10 May 1948 the Provincial Legislature of Bombay enacted Act No. XL of 1948, titled the Bombay City Civil Court Act, 1948, with the express purpose of establishing an additional civil court for the area of Greater Bombay. The relevant provisions of that Act are extracted for the present purpose. Section 1(2) provides that the Act shall come into force on such date as the Provincial Government may appoint by notification in the Official Gazette. 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 any other law, that court shall have jurisdiction to receive, try and dispose of all suits and other civil proceedings not exceeding a value of ten thousand rupees and arising within Greater Bombay, except for suits or proceedings that are cognizable by the High Court as an Admiralty or Vice-Admiralty Court, as a colonial Admiralty Court, or as a court possessing testamentary, intestate or matrimonial jurisdiction; except for suits for the relief of insolvent debtors; except for suits under any special law other than the Letters Patent; and except for suits within the jurisdiction of the Small Cause Court. The provision further permits the Provincial Government, after consulting the High Court, to extend the jurisdiction of the City Court to any suits or proceedings of the kinds specified in clauses (a) and (b) by a similar notification. Section 4, subject to the exceptions in Section 3, authorises the Provincial Government, by notification in the Official Gazette, to invest the City Court with jurisdiction to receive, try and dispose of all civil suits and other proceedings arising within Greater Bombay and of such value as may be specified, not exceeding twenty-five thousand rupees. Section 12 declares that, notwithstanding any other law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court, although 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 was brought into force on 16 August 1948 by a notification issued by the Provincial Government and published in the Official Gazette.

At the same time that the Bombay City Civil Court Act, 1948 was enacted, the Bombay Legislature also passed Act XLI of 1948, which was titled the Bombay High Court Letters Patent Amendment Act, 1948. Under Section 3 of that amendment, Clause 12 of the Letters Patent was modified 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 these statutes, the legality of the Bombay City Civil Court Act (Act XL of 1948) was questioned in the case of Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah, reported in A.I.R. 1949 Bombay 197 and 51 Bombay L.R. 86. That suit concerned promissory notes and was filed in the Original side of the High Court. A Division Bench consisting of Chief Justice Chagla and Justice Bhagwati heard the matter on 2 September 1948 and held that the Act was within the legislative competence of the Provincial Legislature and therefore not ultra vires. The court granted the plaintiff leave, under Section 205 of the Government of India Act, 1935, to appeal to the Federal Court, although no appeal was subsequently taken.

On 20 January 1950, the Provincial Government of Bombay issued Notification No. 2346/5 in the Official Gazette. The notification stated that, exercising the authority conferred by Section 4 of the Bombay City Court Act, 1948 (Act XL of 1948), the Government was pleased to invest, with effect from the date of the notification, the City Court with jurisdiction to receive, try and dispose of all civil suits and other proceedings not exceeding twenty-five thousand rupees in value, arising within Greater Bombay, subject however to the exceptions specified in Section 3 of the Act. A few weeks later, on 6 February 1950, the first respondent, Narothamdas Jethabhai, filed a plaint before the Prothonotary of the Bombay High Court seeking recovery of Rs 11,704-5-4 with interest from the second respondent, Aloysious Pinto Phillips, on three separate promissory notes. In paragraph 4 of the plaint, the petitioner expressly claimed that the High Court possessed jurisdiction 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 under it were ultra vires. Because of uncertainty arising from the recent notification, the Prothonotary referred the question to the Court’s rules and placed it before Justice Bhagwati, who was then sitting as Judge in Chambers. By his judgment delivered on 23 February 1950, Justice Bhagwati held that Section 4 of the Act and the accompanying notification were ultra vires and therefore void. Consequently, the High Court retained original jurisdiction over the suit, and the plaint was formally received and admitted.

After the plaint had been received and admitted, the first respondent issued summons under the court’s rules seeking leave to obtain a judgment against the second respondent. The State of Bombay was added as a party on its own application. The matter was then placed before a Division Bench consisting of Chief Justice Chagla and Justice Tendolkar for trial of four specific issues: (1) whether Act XL of 1948 is ultra vires of the Legislature of the State of Bombay; (2) whether Section 4 of Act XL of 1948 is in any event ultra vires of that Legislature; (3) whether the Government of Bombay Notification No. 2346/5 dated 20 January 1950 is ultra vires, void and inoperative in law; and (4) whether this Court has jurisdiction to try the suit. Issue 1 had already been addressed by the same Division Bench in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah [51 Bom. L.R. 86], where it was answered in the negative without argument, although leave was reserved to the first respondent to contest that earlier decision. Aligning with Bhagwati J, the Division Bench held that by virtue of Section 4 the Provincial Legislature had not itself legislated but had attempted to delegate legislative power to the Provincial Government, a power it did not possess; consequently Section 4 and the notification issued under it were deemed ultra vires, void and inoperative. Accordingly, the Bench answered issues 2, 3 and 4 in the affirmative and remitted the summons for judgment back to the learned Judge for disposal of the remaining matters on their merits. The State of Bombay now appears before this Court in appeal from that High Court decision. The Advocate-General of Madras intervened in support of the appeal, asserting the validity of the Madras City Civil Court Act (VII of 1892). Section 3A of that Act, inserted in 1935, is phrased identically to Section 4 of the Bombay Act, differing only in the monetary limit—Rs. 10,000 in the Madras Act versus Rs. 25,000 in the Bombay provision. The distinction between conditional legislation and the delegation of legislative power has long been recognized, originating with the Privy Council decision in R. v. Burah [L.R. 5 I.A. 178] and reiterated in other Privy Council cases cited by the High Court. It is firmly established that conditional legislation is permissible and often necessary. The difficulty for courts lies in determining whether a particular statutory provision constitutes conditional legislation as explained in those decisions. In the present case, the High Court, interpreting Section 4 of the Bombay City Civil Court Act, concluded that it did not represent an instance of conditional legislation.

In its analysis, the High Court reached the conclusion that the provision under consideration did not represent an instance of conditional legislation. The Court placed particular emphasis on the use of the word “invest” in Section 4, regarding it as highly significant. It observed that the language employed in Section 3 differed markedly and strikingly from that used in Section 4. According to the High Court, Section 3 expressly authorised the Legislature to establish a Court with a defined pecuniary jurisdiction, whereas Section 4 did not confer upon the Court any higher jurisdiction. Instead, Section 4 deferred the exercise of that function to the Provincial Government, in accordance with the Government of India Act which required such a function to be performed by the Provincial Legislature.

The learned Chief Justice further explained that the Legislature had never deliberated on whether the newly created Court should possess a jurisdiction exceeding Rs 10,000. He argued that Section 4 was not merely a directive for the Provincial Government to implement a policy set by the Legislature; rather, it was a provision that actually granted the Provincial Government the authority to confer jurisdiction on the Court. After referring to the decision in R. v. Burah [L.R. 5 I.A. 178] and several other authorities, and attempting to apply the tests articulated in those cases to the present Act, the Chief Justice concluded that the Legislature, exercising its legislative power, had established a Civil Court with a limited jurisdiction under Section 3 of the Act. He held that the Legislature had not created a Court with jurisdiction above ten thousand rupees, and that, having created a Court of limited jurisdiction, it had subsequently empowered the Provincial Government, through Section 4, to confer upon that Court a higher jurisdiction of up to twenty-five thousand rupees. The Chief Justice characterised this power conferred on the Provincial Government as one which, in his view, could only have been exercised by the Legislature itself.

The author of this judgment expressed an inability to accept the foregoing construction of Sections 3 and 4 of the Act. He noted that the High Court’s conclusions were principally founded on observations made by the Privy Council in R. v. Burah [L.R. 5 I.A. 178] and on other Privy Council precedents. Consequently, it was deemed useful to examine the Privy Council decision in R. v. Burah in detail. In 1869 the Indian Legislature enacted Act No. XXII of 1869, which purported to remove the Garo Hills district from the jurisdiction of existing civil and criminal courts and from the legal framework prescribed for those courts by various regulations and statutes. The same Act also intended to vest the administration of civil and criminal justice in that territory in officers appointed, from time to time, by the Lieutenant-Governor of Bengal for the purpose of constituting tribunals of first instance or of reference and appeal.

According to the Act, the provisions were to become operative on the day when the Lieutenant-Governor of Bengal, by publishing a notice in the Calcutta Gazette, directed that they should take effect. Section 8 of the Act specifically empowered the Lieutenant-Governor, again by means of a Gazette notification, to extend to the designated territory any law or any part of a law that was then in force in other territories under his administration, or any law that might later be enacted by the Council of the Governor-General or by the Lieutenant-Governor himself. Section 9 further provided that the Lieutenant-Governor could, from time to time, by Gazette notification, apply 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 those portions of the Khasi Hills that at that time formed part of British India, with each such notification required to describe the boundaries of the territories to which it applied. On 14 October 1871 the Lieutenant-Governor of Bengal exercised the power granted by Section 9 and issued a Gazette notification extending the provisions of the Act to the area commonly called the Khasi and Jaintia Hills, thereby removing those hills from the jurisdiction of the ordinary civil and criminal courts. Subsequently, a man identified as Burah and another individual were convicted by the Deputy Commissioner of the Khasi and Jaintia Hills for the crime of murder and were sentenced to death; the death sentence was later commuted to transportation for life. From their place of detention, they filed a petition of appeal against their conviction. Because the Act of 1869 (Act XXII) had, by the Section 9 notification, been extended to the Khasi and Jaintia Hills, the High Court technically lacked jurisdiction to entertain their appeal unless the Section 9 provision and the accompanying notification were found to be ultra vires and therefore void. When a full bench of judges was assembled to consider the question, the majority held that Section 9 did not constitute fresh legislation but rather represented a delegation of legislative authority. The Crown obtained special leave to appeal the matter to the Privy Council. In reviewing the effect of Sections 1 to 8 of the Act as they applied to the Garo Hills, Lord Selborne, delivering the Privy Council’s judgment, observed that the Governor-General in Council had, in the normal course of legislation, decided to remove a specific district from the jurisdiction of ordinary courts and to place it under new courts and officials appointed by, and answerable to, the Lieutenant-Governor of Bengal, leaving it to the Lieutenant-Governor to determine the timing of that change. He further noted that the legislature had resolved that a certain alteration should occur, but it was deemed advisable to leave both the timing and the manner of implementation to the Lieutenant-Governor’s discretion, and that the laws already in force—or that might later be enacted—in other territories under the same government were considered suitable to be applied to the district in question.

The judgment observed that the same district could be placed under the same laws, but uncertainty existed about applying every part of those laws uniformly. Because of that uncertainty, the judgment deemed it advisable to grant the Lieutenant-Governor a discretionary authority over that particular point. The judge then explained the genuine meaning and effect of Section 9 of the Act. He asked how the provisions that had been applied to the Garo Hills would apply to the Khasi and Jaintia Hills. The Legislature, according to the judgment, decided that it was appropriate for the adjoining district of the Khasi and Jaintia Hills to be withdrawn from the jurisdiction of the existing Courts. The judgment added that this removal should be effected under the same provisions that applied to the Garo Hills, but only when the Lieutenant-Governor deemed it desirable. It also stated that it might be appropriate to apply only a portion of those provisions to the adjoining district rather than the whole set. Accordingly, the Legislature assigned a discretionary power to the Lieutenant-Governor for carrying out those purposes. The judgment then reproduced the exact wording of Section 9, stating: “This having been done as to the Garo Hills, what was done as to the Khasi and Jaintia Hills? The Legislature decided that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, not necessarily and at all events, but if and when the Lieutenant-Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature entrusted for these purposes also, a discretionary power to the Lieutenant-Governor.”

Finally, the judge concluded at page 195 that describing the powers given to the Lieutenant-Governor as if they derived from any other authority was mistaken. He emphasized that the entire operation of those powers was directly and immediately rooted in the Act of 1869 itself. The judgment observed that the proper Legislature had exercised its judgment concerning place, persons, laws, and powers. As a result, the Legislature had legislated conditionally on all those matters, and once the conditions were satisfied, the legislation became absolute. He further noted that where plenary legislative powers exist for particular subjects, they may be exercised either absolutely or conditionally, according to his view. He asserted that legislation conditioned upon the use of specific powers or upon the exercise of a limited discretion granted to trusted persons is not uncommon. Moreover, he added that in many situations such conditional legislation may prove highly convenient. If the reasoning that underpinned the observations of the Bombay High Court were correct, then that reasoning could be applied in Burah’s case, reported in L.R. 5 I.A. 178. In that situation, the judgment would hold that while enacting Sections 1 to 8 the Legislature had deliberately determined and set policy to exclude the Garo Hills from the jurisdiction of the Courts, it had not done so for the Khasi and Jaintia Hills. Instead, the Legislature would have left the decision concerning the exclusion of the Khasi and Jaintia Hills to the Lieutenant-Governor, who alone could act in that regard. However, the Privy Council did not accept this construction and expressly rejected it. The Privy Council, by interpreting the language of Section 9, clarified that the Legislature itself had decided that it was fit and proper to remove the Khasi and Jaintia Hills from the jurisdiction of the existing Courts. This decision, according to the Council, was to be implemented if and when the Lieutenant-Governor deemed it desirable, thereby confirming that the discretionary power was granted by the Legislature itself.

In interpreting Section 9, the Court observed that the Legislature had expressly decided that it was appropriate for the Khasi and Jaintia Hills to be removed from the jurisdiction of the existing courts and to be placed under the same statutory scheme that applied to the Garo Hills. The Legislature did not make this removal an automatic consequence; rather, it authorised the Lieutenant-Governor to act only if and when he considered the removal desirable. By doing so, the Legislature conferred a discretionary power on the Lieutenant-Governor to determine the timing of the change.

The Court then applied the same method of construction to Section 3, using the language of Lord Selborne as a guide. It held that, in enacting Section 3, the Legislature deliberately created an additional civil court with authority 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 did not fix the date on which this new court would become operative. Instead, under Section 1(2), it left to the Provincial Government the discretion to decide when the change should take effect.

Turning to Section 4, the Court found that the Legislature again exercised its judgment by deciding that it was appropriate to extend the pecuniary jurisdiction of the newly created court. This extension was not to occur automatically or all at once; the Legislature authorised the Provincial Government to make the extension at a time it deemed desirable, thereby entrusting the Provincial Government with a further discretionary power. The Court rejected the contention that the Legislature had failed to apply its mind or to lay down any policy. The fact that the extension was capped at twenty-five thousand rupees and that it was subject to the exceptions listed in Section 3 clearly showed that the Legislature had set both the scope and the limits of the extension. Consequently, the effectiveness of the jurisdictional extension derived solely from the authority of the Legislature itself.

The Court explained that the term “invest” carried no special technical meaning; it simply indicated the result of satisfying the condition that the Legislature had stipulated. Using Lord Selborne’s expression, the extension of jurisdiction was directly and immediately effected by the Act itself. There was therefore no relinquishment or abdication of legislative power. On the contrary, the Legislature had exercised its judgment, recognised a possible need to broaden the new court’s pecuniary jurisdiction, and enacted the extension conditionally, with the condition being fulfilled once the Provincial Government issued the requisite notification.

The Court observed that the legislation in question had become absolute. It held that the interpretation applied by the High Court to Sections 3 and 4 was mistaken and could not be sustained on either legal principle or precedent. When the provisions were read in accordance with the observations and ruling of the Privy Council in R. v. Burah [L.R. 5 I.A. 178], Section 4 was seen not as a delegation of legislative authority but as an example of conditional legislation. The Court therefore concluded that the High Court’s construction was erroneous.

The Court noted that the High Court had relied on the Federal Court of India’s decision in Jatindra Nath Gupta v. Province of Bihar to support its conclusions. That case dealt with the validity of the proviso attached to Section 1(3) of the Bihar Maintenance of Public Order Act (V of 1947). Section 1(3) stipulated that the Act would remain in force for one year from its commencement, and the proviso provided that the Provincial Government could, by notification, following a resolution of the Bihar Legislative Assembly and its agreement by the Bihar Legislative Council, extend the Act for an additional year with any modifications specified in the notification. Three of the learned judges held that both the proviso and any subsequent notification were ultra vires and void, emphasizing that the power granted to the Provincial Government to make modifications when extending the Act amounted to a delegation of legislative power. A fourth judge did not decide that issue but set aside the detention order on unrelated grounds, while the remaining judge regarded the proviso as conditional legislation consistent with R. v. Burah. The Court stated that it was unnecessary for the present appeal to determine the correctness of the Federal Court’s decision. Assuming, without deciding, that the power given to the Provincial Government to extend the life of an Act with discretionary modifications constituted a delegation of legislative powers, the Court observed that Section 4 of the Bombay City Civil Court Act 1948 did not grant any such power of modification to the Provincial Government, and consequently the Federal Court’s decision could not be applied to the matter before it.

The Court further addressed the Attorney-General’s argument that, under the Government of India Act 1935, either Central or Provincial Legislatures could delegate their legislative powers while acting within their respective fields. The Court reiterated its earlier view that Section 4 of the Bombay City Civil Court Act 1948 did not involve any delegation of legislative authority, and therefore it found it unnecessary at this stage to consider the broader question of whether such delegation was permissible under the 1935 Act. The Court reserved the right to examine that issue, including the correctness of the Federal Court’s decision in Jatindra Nath Gupta’s case, at a later time if circumstances required.

In this portion of the judgment, the Court observed that Section 4 of the Bombay City Civil Court Act, 1948, did not constitute a delegation of legislative power. The Court therefore said that it was not necessary at this stage to examine that issue in detail. However, the Court reserved the right to consider and decide that issue, including whether the Federal Court's decision in Jatindra Nath Gupta’s case (A.I.R. 1949 F.C. 175) was correct, should the matter arise in the future. The counsel for the first respondent then raised a broader question: whether the Bombay City Civil Court Act, 1948, in its entirety fell within the legislative competence of the Provincial Legislature of Bombay. The Court explained that under Section 100 of the Government of India Act, 1935, legislative authority was divided between the Federal Legislature and the Provincial Legislatures. Section 100 provided that the Federal Legislature possessed the power to enact laws concerning any matter listed in List I of the Seventh Schedule, and expressly denied that power to the Provincial Legislatures. Conversely, the Provincial Legislature was given the exclusive authority to legislate on matters enumerated in List II, while the Federal Legislature was excluded from those matters. The provision also indicated that the assignment of power to one legislature implicitly excluded the other from the same subject matter. In addition, Section 100 granted both the Federal and Provincial Legislatures concurrent power to legislate on items listed in List III. Section 107 of the same Act prescribed the method for resolving any conflict that might arise between a Provincial law and a Federal law, or between a Provincial law and existing Indian law, concerning matters in the Concurrent List (List III). The Court then turned to the three lists to identify entries relevant to courts. In List I, Entry 53 concerned the jurisdiction and powers of all courts, except the Federal Court, with respect to 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 taken therein; Entry 2 covered the jurisdiction and powers of all courts except the Federal Court, as well as procedures in rent and revenue courts. In List III, Part 1, Entry 2 related to criminal procedure, including all matters contained in the Code of Criminal Procedure as it stood at the time of the Act’s passage; Entry 4 concerned civil procedure, including the law of limitation and all matters contained in the Code of Civil Procedure at that time; and Entry 15 again addressed the jurisdiction and powers of all courts except the Federal Court with respect to matters in that list. Following this enumeration, the Attorney-General argued that Entry 1 in

In this case the Court observed that List II expressly designated the administration of justice as a provincial matter, meaning that only the Provincial Legislature possessed the authority to enact legislation concerning the administration of justice. The Court explained that the argument advanced by counsel required first establishing that the administration of justice could not exist without the creation and organization of courts, and that any effort by a provincial legislature to create or organize courts would be futile unless those courts were given the necessary jurisdiction and powers to receive, try, and determine suits and other proceedings. Consequently, the Court stated that the contention was that entry 1 of List II alone conferred upon the Provincial Legislature the capacity not merely to constitute and organize courts but also to grant them jurisdiction and powers. The learned Attorney-General, relying on Jagtiani’s case [51 Bom. L.R. 86], emphasized that entry 1 placed the entire responsibility for the administration of justice with the province and authorized the Provincial Legislature to legislate on that subject. According to the argument, the concept of administration of justice is inseparable from courts, and a court lacking jurisdiction is an unintelligible notion. Therefore, the conclusion sought was that entry 1 of List II alone gave the Provincial Legislature the power to enact a law that would both create a new court and endow that court with general jurisdiction and authority to receive, try, and determine all suits and other proceedings. The Court noted that if entry 1 of List II were considered in isolation, without the presence of entry 53 in List I, entry 2 in List II, and entry 15 in List III in the Seventh Schedule, the argument would have been untenable. The Court further observed that Section 92 of the British North America Act, 1967, contained no separate provision granting authority to legislate on court jurisdiction and powers; consequently, any power to legislate on such jurisdiction and powers had to be derived from the phrase “administration of justice” in Section 92(14) of that Act. However, the Court warned that there was no compelling necessity to interpret the words “administration of justice” in entry 1 of List II so broadly as to encompass all aspects of court jurisdiction and powers. The Court explained that the expression may be broad in nature and, in the absence of any indication to the contrary, could ordinarily include several component elements such as the constitution and organization of courts, the jurisdiction and powers of courts, and the laws to be administered by the courts. Nevertheless, the Court pointed out that both English and Indian legislative practice traditionally addressed these topics separately in statutes, citing 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 of the Bombay High Court 1865.

The Court observed that among the various Civil Courts Acts, the subject “constitution and organisation of Courts” had been expressly placed in entry 1 of List II together with the phrase “administration of justice”. This fact was considered significant, although the Court was careful to state that merely inserting the words “constitution and organisation of all Courts” into entry 1, without any other qualifying language, did not by itself narrow the general meaning of the preceding expression “administration of justice”. To adopt such a narrow construction, the Court warned, would conflict with the principle established by the Privy Council in Meghraj v. Allah Rakhia (L.R. 74 I.A. 12 at p. 20). The Court further noted that entry 2 in List II would be entirely superfluous if the expression “administration of justice” in entry 1 were given the broad interpretation advocated by the learned Attorney-General. Under that broad view, the Provincial Legislature would possess plenary authority to enact laws granting or withdrawing the widest possible jurisdiction and powers to any court, whether existing or newly created. Such an extensive power would automatically encompass the more limited authority to confer jurisdiction and powers over the matters specifically enumerated in entry 2 of List II. The Court therefore held that the greater power would necessarily include the lesser. Nevertheless, the Court declined to say that the mere presence of entry 2 limited the scope of “administration of justice” in entry 1. It explained that, had only entries 1 and 2 existed in List II and there were no comparable entries such as entry 53 in List I or entry 15 in List III, one could plausibly argue that the drafter had not taken great care to avoid overlap, that both entries granted legislative authority to the same legislature, and that any overlapping jurisdiction would cause no confusion or inconvenience. Consequently, it would not be necessary to interpret entry 1 as being reduced by the existence of entry 2 within the same list. The Court emphasized the important observation that the topic “jurisdiction and powers of Courts” was not incorporated into entry 1 of List II alongside “constitution and organisation of Courts”. Instead, the legislative competence concerning “jurisdiction and powers of the Courts” had been deliberately allocated among the Federal and Provincial Legislatures through entry 53 in List I, entry 2 in List II, and entry 15 in List III. Accordingly, the inclusion of “constitution and organisation of Courts” as a distinct item in entry 1 of List II, the omission of “jurisdiction and powers of Courts” from that entry, and the purposeful distribution of law-making authority over jurisdiction and powers of courts with

In this case, the Court observed that the wording of the three lists showed that Parliament did not intend entry 1 of List II, taken alone, to permit the Provincial Legislature to enact any law concerning the jurisdiction and powers of courts. The Court held that entry 1 of List II could not be interpreted as granting the Province any authority to assign jurisdiction or powers to a court that it might create or organise under that entry. Accordingly, the expressions “administration of justice” and “constitution and organisation of Courts” in entry 1 of List II were to be understood as excluding “the jurisdiction and powers of Courts”, which were matters whose legislative authority had been allocated among entry 53 of List I, entry 2 of List II and entry 15 of List III. The Court said that this construction accorded with the principle of interpretation laid down by the Privy Council in In re Marriage Legislation in Canada, reported in the 1912 Appeal Cases at page 880.

The Court further examined the argument that entry 1 of List II gave the Provincial Legislature a general power to enact laws conferring general jurisdiction and powers on courts it might establish under that entry, while entry 53 of List I, entry 2 of List II and entry 15 of List III provided special powers to the Federal and Provincial Legislatures to enact laws granting special jurisdiction and powers on specified matters. The Court noted that, if entry 1 of List II were to confer a plenary power on the Province to legislate on the jurisdiction and powers of courts in the broadest sense, then entry 2 of List II would become redundant because the broader power would encompass the narrower one. Moreover, the Court observed that the explicit acknowledgment that entry 53 of List I, entry 2 of List II and entry 15 of List III gave special powers implied that the powers given to the Province by entry 1 of List II were separate from, and exclusive of, those special powers. If entry 1 of List II allowed the Province to create laws conferring the widest possible jurisdiction, including all matters listed in the three lists, then the purpose of the special provisions in entries 53, 2 and 15 would be defeated, rendering the notion of a special power meaningless. The Court concluded that this circumstance alone was sufficient to require a limited interpretation of the authority conferred on the Provincial Legislature by entry 1 of List II.

The Court reiterated its earlier conclusion that the wording of entry 1 in List II must be interpreted as granting the Provincial Legislature the authority to legislate on every aspect of the administration of justice, including the constitution and organization of courts, but expressly excluding the power to enact laws concerning the jurisdiction and powers of those courts. It was emphasized that, under entry 1, only the Provincial Legislature possessed the exclusive competence to create and organize a new court. If entry 1 did not also empower the Legislature to assign to that newly created court a general jurisdiction—meaning the authority to receive, try, and dispose of all categories of suits and other proceedings—then the establishment of any court of general jurisdiction would be impossible. The Court further observed that the Provincial Legislature already enjoys, under entry 2 of List II, the power to enact statutes that confer a wide and general jurisdiction upon a court it has newly constituted. Consequently, a strained or forced interpretation of entry 1 was unnecessary. Some submissions argued that, should entry 1 fail to confer jurisdiction on a court created under that entry, the Legislature would be compelled to pass one statute under entry 1 merely to create the court without granting it any jurisdiction, and then pass a separate statute to define the court’s jurisdiction and powers. The Court found this line of reasoning unpersuasive, noting that a single piece of legislation could simultaneously establish a court under entry 1 and allocate to it jurisdiction and powers over any matters listed in List II, and, subject to Section 107 of the Act, over matters listed in List III. It further rejected the assumption that the Provincial Legislature could not, in the same enactment, draw on the powers conferred by entry 1, entry 2 of List II, and entry 15 of List III.

A substantial part of the hearing involved debate over the applicability of the doctrine of pith and substance, a doctrine that had also underpinned the Bombay High Court’s decision in the Jagtiani case. The argument presented asserted that entry 1 in List II gave the Provincial Legislature the competence to make laws concerning the administration of justice, and therefore, under that same entry, the Legislature could also legislate to confer a general jurisdiction and accompanying powers on courts that it created and organized pursuant to entry 1. It was further contended that if, in exercising this power, the Provincial Legislature inadvertently intruded upon the legislative domain reserved for the Federal Legislature by entry 53 of List I—specifically the jurisdiction and powers of courts over matters enumerated in List I—such incidental encroachment would not invalidate the provincial law, provided that, in substance, the law fell within the provincial legislature’s competence. The Court recognized that this line of argument essentially posed a rhetorical question, as the doctrine of pith and substance requires that the impugned law be substantially within the legislative authority of the body that enacted it, while any overlap with another legislature’s domain must be merely incidental. The Court therefore prepared to examine whether, on a proper construction, entry 1 of List II truly authorized the Provincial Legislature to vest a general jurisdiction on a newly formed court, and what the implications would be if such a law also touched upon matters listed in List I.

The Court observed that an incidental encroachment on the field of another legislature does not render a law invalid if, in substance, the law falls within the legislative authority of the body that enacted it. In the Court’s view, the argument that such an encroachment automatically invalidates the law is fundamentally flawed. The doctrine of pith and substance, as articulated, requires that the law under challenge be essentially within the competence of the legislature that passed it, even though it may incidentally affect the jurisdiction of a different legislature. This doctrine preserves the law when the core of the legislation lies within the law-making power of the enacting legislature. Consequently, if the Provincial Legislature possessed authority under entry 1 of List II to confer general jurisdiction upon a newly created court, and the statute it passed incidentally granted that court jurisdiction over matters enumerated in List I, the relevance of the pith and substance doctrine would then be open to consideration. The Court had earlier concluded that, when entry 1 of List II is properly interpreted, it does not empower the Provincial Legislature to confer any jurisdiction or powers on a court; the phrase “administration of justice” must be read to refer only to matters relating to the administration of justice that do not include the jurisdiction or powers of courts. If that interpretation is accepted, the issue of pith and substance does not arise at all. The Court expressed difficulty in endorsing the reasoning of the Bombay High Court in Jagtiani’s case. Nonetheless, the Court recognized that an argument for the applicability of the pith and substance doctrine could be reformulated. Under entry 2 of List II, the Provincial Legislature may legislate concerning the jurisdiction and powers of courts with respect to any matter listed in List II. Since “administration of justice” appears in entry 1 and is itself a matter in List II, the Provincial Legislature could, in theory, grant the widest possible general jurisdiction to a new court or withdraw jurisdiction from an existing court, thereby invoking the pith and substance doctrine. Critics contend that this argument is unsound because the language of entry 2 speaks of “any of the matters in this List” as a subject-matter “with respect to” which the court may exercise jurisdiction and power. The Court found this construction erroneous, noting that attributing jurisdiction “over” the administration of justice is meaningless; entry 2 cannot be read together with entry 1 in such a manner. The Court therefore concluded that the words “with respect to” in entry 2, when applied to entry 1, must be understood as meaning “relating to,” “touching,” “concerning,” or “for” administration of justice, and that, read in this sense, entry 2 in conjunction with entry 1 does indeed confer authority to the Provincial Legislature to legislate on the general jurisdiction and powers of courts in relation to the administration of justice.

The judgment held that the provision authorised the Provincial Legislature to enact a law that could either confer upon or withdraw from a Court its general jurisdiction and powers that relate to, touch upon, concern, or are for the administration of justice. The Court observed that this line of reasoning had been explained in great depth and clarity by the learned Justice Sastri, and therefore the author added no further comments, respectfully adopting the reasoning and conclusion expressed by that Justice. In the author’s view, the argument clears all remaining doubts by placing the authority to grant general jurisdiction in the hands of the Provincial Legislature for Courts that it establishes and organises, thereby assigning to them the special responsibility of effective administration of justice. Any suggestion that there had been a deliberate encroachment based on the proviso to Section 3 of the Act, which had permitted the Provincial Government to grant Admiralty jurisdiction to the City Court—a matter listed in List I—was rendered moot by the amendment of that proviso effected by Bombay Act XXVI of 1950. The Court further concluded that, in its judgment, the impugned Bombay Act was properly supported as legislation enacted by the Provincial Legislature on the basis of entry 2 read with entry 1 in List II, and accordingly affirmed that the appeal should be allowed. The Court noted that, given this view, it was unnecessary to consider the Attorney-General’s contention that the Bombay City Civil Court Act might be justified as legislation made by the Provincial Legislature of Bombay under entry 4 read with entry 15 in Part I of List III, and expressly refrained from expressing any opinion on that point. Accordingly, the appeal was allowed.