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CASE NO.: Appeal (civil)  2452 of 1992

PETITIONER: Jamshed N. Guzdar

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 11/01/2005

BENCH: CJI, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna]     & G.P. Mathur

JUDGMENT: J U D G M E N T

WI TH  

Civil Appeal No. 2529 of 1992

Bombay Civil and Sessions Court Bar Association                                   ... Appellant

Versus

Jamshed N. Guzdar & others                      ... Respondents

WI TH  

Civil Appeal No. 2530 of 1992

The State of Maharashtra                                ... Appellant

Versus

Jamshed N. Guzdar & others                      ... Respondents

WI TH  

Transfer Case (Civil) Nos. 8-11 of 1989

Jaimini B. Chinai and others etc.                       ... Petitioners

Versus

State of Maharashtra and others                 ... Respondents

WI TH  

Civil Appeal Nos. 1222-1224 of 1985

The State of Madhya Pradesh                     ... Appellant

Versus

The Perfect Pottery Co. Ltd. & others           ... Respondents

Shivaraj V. Patil J.

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       The Constitutional validity of the Bombay City Civil  Court and Bombay Court of Small Causes (Enhancement of  Pecuniary Jurisdiction & Amendment) Act, 1986  (Maharashtra Act No. XV of 1987) (for short ’the 1987 Act),  which received assent of the President on 4.5.1987,  Maharashtra High Court (Hearing of Writ Petitions by  Division Bench and Abolition of Letters Patent Appeals) Act,  1986 (Maharashtra Act XVII of 1986) (for short ’the 1986  Act’), which received the assent of the President on  28.2.1986, and the correctness of the Full Bench decision of  the High Court of Madhya Pradesh striking down the  provisions of the Madhya Pradesh Uchcha Nyayalaya  (Letters Patent Appeals Samapti) Adhiniyam, 1981  (for  short ’the Adhiniyam) abolishing Letters Patent appeals as  invalid are under challenge in these matters.

Civil Appeal No. 2452/1992

2.      This appeal is directed against the order of the  Division Bench of the High Court of Maharashtra made in  Writ Petition No. 738 of 1992.  The appellant herein filed  writ petition by way of public interest litigation questioning  the constitutional validity of the the 1987 Act.  In addition  to challenging the constitutional validity of the  aforementioned Act, he also sought for declaration that the  Notification dated 20th August, 1991 issued by the State of  Maharashtra as illegal, arbitrary and violative of Articles 14  and 19(1)(g) of the Constitution of India.  The High Court,  after dealing with the rival contentions, dismissed the writ  petition by the impugned judgment upholding the validity of  the 1987 Act and deferring the implementation of the  Notification dated 20.8.1991 till 2.10.1992.  After the  impugned judgment was delivered, the appellant orally  sought for leave to appeal to Supreme Court under Article  132(1) read with Article 134-A of the Constitution of India.   This appeal is by certificate granted by the High Court  under Article 132(1) read with Article 134 of the  Constitution of India.

3.      Although the 1987 Act received the presidential assent  on 4.5.1987, it was not implemented for over four years  between 4.5.1987 to 20.8.1991 for want of infrastructure  and other requirements at the Bombay City Civil Court.  The  High Court of Bombay had indicated to the Government  that before the said Act could be brought into force, the  City Civil Court should be adequately equipped to handle  the transfer of jurisdiction.  The High Court in 1988 had  categorically stipulated that minimum 110 judges would be  necessary as a pre-condition for the transfer of jurisdiction  to the City Civil Court for the implementation of the said  Act.  The High Court had indicated the requirements such  as requisite number of court halls, judges, chambers,  residences, books and staff etc.  It appears there were  several representations both for and against the  implementation of the Act.  On 20.8.1991, State of  Maharashtra issued the notification to bring the 1987 Act  into force with effect from 1.5.1992.  Contending that   there was no necessary infrastructure and other  requirements were not satisfied to take care of the transfer  of jurisdiction to deal with the cases and that there was no  legislative competence for passing such Act by the  legislature of State of Maharashtra, Writ Petition No. 738 of  1992 was filed, as already indicated above, challenging the

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constitutional validity of the 1987 Act as well as the afore- mentioned notification of 20.8.1991 bringing the 1987 Act  into force with effect from 1.5.1992.  On 15.4.1992, rule  was issued and permission was given for intervention  among others to the Bombay Bar Association, Bombay  Incorporated Law Society, the Indian Merchants’ Chamber  and the Bombay City Civil and Sessions Court Bar  Association.  After hearing the arguments at considerable  length and dealing with the rival contentions, the Division  Bench of the High Court passed the impugned judgment on  29.4.1992 in terms already mentioned in the beginning of  this judgment. Civil Appeal Nos. 2592 of 1992 and 2530 of 1992

4.      These two appeals are filed by Bombay City Civil and  Sessions Court Bar Association and State of Maharashtra  respectively aggrieved by the second part of the judgment  dated 29.4.1992 passed in Writ Petition No. 738 of 1992,  i.e., deferring the implementation of the Notification dated  20.8.1991.

T.C. Nos.  8-11/1989

5.      A writ petition No. 1953 of 1987 was filed by one  Jaimini B. Chinai challenging the constitutional validity of  the 1986 Act.  While issuing rule, the High Court stayed the  implementation of the said Act observing that certain  questions raised in the writ petition were of substantial  nature having far-reaching consequences and were of public  importance.  State of Maharashtra filed a transfer petition  No. 685 of 1988 in this Court seeking transfer of the said  writ petition No. 1953 of 1987 to this Court.  This Court, by  order dated 24.3.1988, ordered for transferring the said  petition to be heard along with Civil Appeal Nos. 1222-24 of  1985 filed by State of Madhya Pradesh against Full Bench  judgment of the Madhya Pradesh High Court which held the  Adhiniyam to be unconstitutional as they involved identical  issues of legislative competence.

6.      Some other writ petitions were filed in the High Court  seeking declaration that the 1986 Act, i.e., the Maharashtra  High Court (Hearing of Writ Petitions by Division Bench and  Abolition of Letters Patent Appeals] Act, 1986 (Act No. XVII  of 1986) is ultra vires the Constitution and null and void in  law.  Transfer petition Nos. 685-88/89 were filed before this  Court seeking transfer of writ petitions to this Court.  This  Court passed order withdrawing the writ petitions which  were pending in the High Court of Bombay for being heard  along with Civil Appeal Nos. 1222-24/85 filed by State of  Madhya Pradesh.  These transfer petitions were numbered  as Transfer Case (C) Nos. 8-11/1989. The grounds raised in  the writ petitions to challenge the constitutional validity of  the 1986 Act are that the said Act is beyond the  competence of the State Legislature and is also violative of  Article 14 of the Constitution of India; in the Statement of  Objects and Reasons, it is stated that the 1986 Act is on the  lines of the Adhiniyam.  The Adhiniyam had been declared  ultra vires and beyond the competence of the State  Legislature by a Full Bench of Madhya Pradesh High Court in  the case of Balkrishna Das & Ors. Vs.  Perfect Pottery  Company Ltd. Jabalpur & Ors. ; the 1986 Act which  deals with the organization and general jurisdiction of High  Court is beyond the legislative competence of the State  Legislature having regard to Entries 77 and 78 of List I,  Entry 11-A of List III, Entry 95 of List I, Entry 65 of List III

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and Entry 46 of List III and the 1986 Act is arbitrary,  unreasonable and violative of Article 14 of the Constitution  of India.  Further that a right of appeal is a substantial right  and one appeal on facts and law is a necessary ingredient  of the system of justice.  Moreover, abolition of Letters  Patent Appeals denies the litigants, on the original side of  the High Court, the benefit of appeals statutorily provided  for under various Central statues such as Contempt of  Courts Act, the Companies Act, the Arbitration Act, etc. Civil Appeal Nos. 1222-24/85 7.      These appeals are filed by the State of Madhya  Pradesh questioning the validity and correctness of the  impugned judgment dated 27.8.1984 passed by the Full  Bench of the Madhya Pradesh High Court.   

8.      A company petition No. 5/83 was filed by respondent  Nos. 4-17 under Sections 397-398 of the Companies Act,  1956.  The Company Judge substantially dismissed the said  Company Petition.  However, the learned Judge granted  relief under Section 398(1)(b) by directing proportionate  representation on the Board of Directors.  Three Company  Appeal Nos. 4, 5 and 7 of 1983 were filed, aggrieved by the  order made in the company petition.  In view of the  provisions of the Adhiniyam abolishing Letters Patent  Appeals in the High Court, respondent no. 2 filed S.L.P. (C)  No. 16066/83 against the aforementioned decision of the  Company Judge.  Later, the said SLP was withdrawn.  The  Division Bench of the High Court referred the question of  maintainability of appeals to Full Bench in view of the  provisions of Adhiyiyam abolishing Letters Patent Appeals.   Earlier, a Division Bench had upheld the validity of the  Adhiniyam.  The Full Bench of the High Court, by a majority  of 2:1 declared the Adhiniyam to be ultra vires the  Constitution by its judgment dated 27.8.1984.  Hence, the  State of Madhya Pradesh is in appeal before this Court  challenging the validity and correctness of the impugned  judgment passed by the Full Bench of the High Court.

9.      It may be stated here itself, in all these matters, the  principal question that arises for consideration relate to the  legislative competence of the State legislatures of  Maharashtra and Madhya Pradesh in passing the  enactments.  Further, in Civil Appeal No. 2452 of 1992, in  addition to challenging the constitutional validity of the  1987 Act, it is contended that even if the validity of the Act  is upheld for want of infrastructure and necessary facilities,  it cannot be brought into force unless the State  Government satisfies that there are sufficient number of  court halls and other infrastructure mentioned including the  requisite number of judges available to discharge their  functions in the City Civil Court.   

10.     The contention of Mr. T.R. Andhyarujina, learned  Senior Counsel for the appellant in Civil Appeal No. 2452/92   and Transferred Case (C) Nos. 8-11/1989 was that the  1987 Act affected the "constitution and organisation of the  High Court" by abolishing original civil jurisdiction of the  High Court and as such it was beyond the legislative  competence of the State Legislature because such a  legislation is within the exclusive legislative competence of  Parliament under Entry 78 List I of Seventh Schedule of the  Constitution.  In his submissions on this point, he traced  the history of working of High Court and City Civil Court and  Letters Patent jurisdiction of High Court.  In support of his  submissions, he cited few decisions.  Alternatively, he urged

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that even if the 1987 Act was intra-vires having regard to  lack of infrastructure including requisite judges in City Civil  Court it was an arbitrary or unreasonable exercise of  statutory power vested in the Government to bring into  operation the 1987 Act and hence the Government  Notification dated 20.8.1991 bringing into operation the  1987 Act was illegal.  He also added that the said  Notification was issued by the Government under pressure  for collateral and extraneous reasons only to appease a  section of agitating lawyers who went on hunger strike etc.   Elaborating his submission on point no. 1, he submitted  that it is only the Parliament which has the exclusive  legislative competence under Entry 78 of List I to make a  law relating to "the constitution and organization of the  High Courts".  The State Legislature has, however,  the  concurrent legislative powers to legislate in respect of the  constitution and organization of all courts excepting the  Supreme Court and the High Courts as per Entry 11-A of  List III; prior to 3.1.1977, the State had exclusive  legislative competence to constitute and organize courts  other than the Supreme Court and the High Courts under  Entry 3 of List II which was amended to transfer it to Entry  11-A in List III by the Constitution 42nd Amendment Act,  1976.  According to the learned Senior Counsel, the general  jurisdiction of a civil court as opposed to its special  jurisdiction in respect of a particular subject matter relates  to the constitution of a court and flows from the very Act  constituting it.  Thus, the general jurisdiction of the High  Court is the subject covered by Entry 78 of List I falling  within the exclusive legislative competence of Parliament.   On the other hand, the general jurisdiction of a court other  than the Supreme Court and the High Court is a subject  that was under Entry 3 of List II prior to the Constitution  42nd Amendment Act, 1976.  He also contended that the  State Legislature has also the legislative competence to  make laws conferring special jurisdiction on courts or taking  away such special jurisdiction from courts in respect of  subjects in the Lists II and III by virtue of Entry 65 or Entry  46 respectively; this, however, is not general jurisdiction of  a court arising from its constitution.  He cited the decision  of State of Bombay vs. Narothamdas Jethabhai & Anr.   to show how the scheme relating to jurisdiction of court was  explained.

11.     The learned Senior Counsel also urged that  "constitution" of a court of law necessarily includes its  general jurisdiction. No court can be constituted without  jurisdiction; jurisdiction and constitution of a court are  inseparable; otherwise it would be an ineffective institution  in name only; the ordinary dictionary meaning of the word  "constitution" of a court is sufficiently wide to include the  jurisdiction of a court.  In common parlance also, if a court  is to be constituted, it must necessarily be constituted with  its heart and soul, namely, its jurisdiction.  Consequently, a  law in its true content and purport relating to the  jurisdiction of the High Court can only be made by  Parliament.  The 1987 Act abolishes the general civil  jurisdiction of the High Court affecting its constitution,  therefore, it was beyond the competence of the State  Legislature inasmuch as the constitution and organization of  the High Courts is vested in the Union Parliament.  The  learned Senior Counsel drew our attention to the scheme of  the constitution of courts under Govt. of India Act, 1935  and submitted that the scheme under that Act relating to  the Constitution and organization of the High Courts was

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different.  The Provincial Legislature had the exclusive  legislative competence to make law relating to the  constitution and organization of all courts except the  Federal Court (under Entry 2 of List II of the Provincial  List).  Consequently, the Provincial Legislature had the  legislative competence to constitute a court including a High  Court and to legislate in respect of its jurisdiction.  This  being the position, this Court in Narothamdas Jethabhai   (supra) upheld the validity of the Act as validly made under  Entry 1 List II of the Govt. of India Act, 1935.  He also drew  our attention to certain passages in the case of  Narothamdas Jethabhai relating to word "constitution" of  a court.  He stated that the words "constitution of court" as  explained in Narothamdas Jethabhai was followed in a  subsequent judgment of this Court in Supreme Court  Legal Aid Committee representing undertrial  prisoners etc. vs. Union of India and others .  Thus,  according to him, Parliament alone could make law  abolishing the general original civil jurisdiction of an  existing High Court as it directly and substantially related to  its constitution which is a subject falling in exclusive  jurisdiction of Parliament under Entry 78 of List I of the  Constitution.  He took pains to explain as to the scope and  ambit of different Entries in three Lists touching the subject  in controversy and reason for the Constitution 42nd  Amendment Act of 1976 in relation to Entry No. 3 of List II  as amended and creating a new Entry 11-A in List III.   According to him the change was brought about deliberately  so that Parliament alone should be given the power under  the scheme of the Constitution to make legislation which  substantially affected the constitution and organization of  the higher judiciary.  According to him, several other  provisions of the Constitution also support this view.  For  instance, Article 230 read with Entry 79 of List I gives  Parliament the exclusive competence to deal with  "extension of the jurisdiction of a High Court to and  exclusion of jurisdiction of a High Court from, in Union  Territory".  He also referred to Articles 216, 217, 221, 222,  223 and 224 to show that the President of India and Govt.  of India alone have powers in respect of the matters stated  in those Articles to secure a unified higher judiciary in  matters provided in these Articles.

12.     Although the 1987 Act on its face purports to state  that it is only enhancing the general jurisdiction of Bombay  City Civil Court, in effect it abolishes the ordinary original  civil jurisdiction of the High Court of Bombay in entirety.   The Govt. of India has taken the same stand as the  appellant.  In Geetika Panwar vs. Government of NCT  of Delhi & Ors. , the Full Bench of Delhi High Court has  taken the view which supports the case of the appellant.   Subsequently, accepting the position, Parliament has made  a law in regard to High Court of Delhi.  The learned Senior  Counsel also submitted that the 1987 Act cannot be held to  be constitutionally valid even on the principle of pith and  substance of the legislation.

13.     On ground No. 2, the learned Senior Counsel  reiterated that for want of necessary infrastructure  including the requisite number of judges in the City Civil  Court, it was an arbitrary and unreasonable exercise of  statutory power vested in the Government to bring into  operation the 1987 Act by issuing the impugned Notification  dated 20.8.1991.  Facts and figures are also given in this  regard relating to number of civil suits pending as on

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31.12.2002 in the City Civil Court even at the existing limits  of pecuniary jurisdiction i.e. Rs. 50,000/-.  According to him  the City Civil Court has been unable to cope with the load of  its existing criminal jurisdiction.  The High Court also  specifically stated that 110 Judges were required for City  Civil Court in addition to necessary infrastructure if the Act  is to be brought into force.  In the absence of infrastructure  and the required number of Judges, Civil Court can not cope  with the workload and it cannot be functional.

14.     The learned Senior Counsel on ground No. 3  submitted that because of the agitation by a section of  lawyers, the Notification dated 20.8.1991 was issued out of  pressure and other considerations which according to him  cannot be sustained.  If it is allowed to stand, it will lead to  difficulty and anomalous situation resulting in greater  hardship to the litigants and even administration of justice  will suffer.  Instead of a speedy disposal, the cases may be  pending considerably for a long time in City Civil Court.

15.     Mr. K.K. Singhvi, learned Senior Counsel appearing for  Bombay City Civil & Sessions Court Bar Association, made  submissions supporting the impugned judgment upholding  the constitutional validity of 1987 Act.  According to him,  Entry 77 in List I deals with the constitution, organization,  jurisdiction and powers of the Supreme Court.  Entry 78  deals with only constitution and organization of the High  Courts and not with jurisdiction and powers of the High  Courts.  Jurisdiction and powers of the High Courts are  dealt with as a separate topic, namely, "administration of  justice" under Entry 11-A of the Concurrent List which was  originally in Entry 3 of the State List.  According to him, the  general jurisdiction of the High Courts thus falls under  "administration of justice" covered by Entry 11-A in the  Concurrent List.  He further submitted that Entry 95 of the  Union List, Entry 65 of the State List and Entry 46 of the  Concurrent List refer to special jurisdiction of courts with  respect to the matters contained in the respective Lists.   Entry 95 of List I deals with the power of the Parliament to  confer jurisdiction and power of all the courts except the  Supreme Court with respect to any of the matters in List I.   Entry 65 of the List II deals with the power of State  Legislature to confer jurisdiction and powers of all the  courts excepting the Supreme Court with respect to the  matters contained in the State List.  Similarly Entry 46 in  the Concurrent List deals with the power and jurisdiction of  all the courts excepting the Supreme Court with respect to  all the matters contained in the Concurrent List.  One of the  items in the Concurrent List is Civil Procedure Code under  Entry 13.

16.     According to him the State Legislature has the power  and legislative competence to confer general jurisdiction on  all the courts except the Supreme Court under Entry 11-A  in the Concurrent List under the caption "administration of  justice".  Thus, passing of the 1987 Act was within the  competence of the State Legislature.  The State Legislature  was the sole repository of power to confer jurisdiction on all  the courts excepting the Supreme Court under Entry 3 of  the State List prior to Forty-second Amendment Act, 1976  and thereafter both Parliament as well as the State  Legislature have power to confer general jurisdiction on all  the courts including the High Courts under Entry 11-A of  the Concurrent List.  The learned Counsel submitted that  the subject relating to constitution and organization of High

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Courts does not include jurisdiction and powers of the High  Court; it is only with reference to establishment or  constitution of the High Court having regard to Articles 2, 3  and 4 and other relevant Articles of the Constitution.  He  added that the expression "administration of justice’ has a  wide meaning and includes administration of civil as well as  criminal justice and is complete and self-contained Entry.   The words ‘administration of justice’ are of widest  amplitude and are sufficient to confer upon the State  Legislature the right to regulate and provide for entire  machinery connected with the administration of justice in  the State.  The State Legislature being an appropriate body  to legislate in respect of the administration of justice and to  invest all courts within the State including the High Court  with general jurisdiction and powers in all matters \026 civil  and criminal \026 it must follow that it can invest the High  Court with such general jurisdiction and powers including  territorial and pecuniary jurisdiction and also to take away  such jurisdiction and powers from the High Court.   Conferring unlimited jurisdiction on civil court or taking  away the same from the High Court does not amount to  dealing with the constitution and organization of the High  Court.  Under Entry 11-A List III, State Legislature was  empowered to confer jurisdiction and powers upon all  courts within the State including the High Court.

17.     Entry 46 of the Concurrent List deals with the special  jurisdiction in respect of the matters in List III.  One of the  items in the said list at serial No. 13 is Civil Procedure Code  on the commencement of the Constitution.  The 1987 Act  deals with the pecuniary jurisdiction of the courts as  envisaged by Sections 6 and 9 of the Civil Procedure Code  and as such the State Legislature was competent to  legislate under Entry 13 of List III.  In support of his  submission, the learned Counsel relied on a few decisions.  18.     Mr. U.U. Lalit, learned senior counsel for the State of  Maharashtra, while supporting the impugned judgment  submitted that there is an anomaly created by, or  deficiency found in Section 3 of the 1986 Act inasmuch as  Section 3 of the said Act read with Section 9 of 1987 Act  fails to make any provision for appeal against a decree or  order passed after the commencement of the Act in any suit  or other proceedings pending in the High Court since before  the commencement of the Act.  He sought ten days time to  have instructions from the State of Maharashtra in this  regard.  Thereafter, on the basis of the letter No. 37-PF  2131097  dated 17th December, 2004 of Principal Secretary  & R.L.A., State of Maharashtra, I.A. No. 10 is filed seeking  permission to place on record the said letter indicating the  willingness of the State of Maharashtra to take necessary  steps to make legislative amendment to Section 3 of the  Maharashtra Act No. XVII of 1986, relevant portions of  which read:   "With reference to the above subject, I have to  state that you are hereby given instructions to  make a statement before the Hon’ble Supreme  Court that the State of Maharashtra will take  necessary steps to make legislative amendment  to Section 3.1 of the Maharashtra Act No. XVII of  1986 (The Maharashtra High Court (Hearing of  Writ Petitions by Division Bench and Abolition of  Letters Patent Appeal) Act, 1986) to make a  provision for appeal against the judgment, order  and decree passed on the appointed date by the  High Court and thereafter as may be indicated in

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the judgment of the Supreme Court."

19.     Mr. Mohan Parasaran, Additional Solicitor General,  urged that being conscious of importance of the institutions  of the Supreme Court and the High Courts the Constitution  did not confer any power on the State Legislature to  legislate or tinker with their jurisdiction; therefore, law  passed by the State Legislature concerning the jurisdiction  of the High Courts having wider ramifications affecting or  taking away other jurisdictions already vested in the High  Courts would be ultra vires of the State Legislature; the  powers in this regard lie only with the Parliament; the  expression ’administration of justice’ has to be so construed  so as to exclude the jurisdiction of the Supreme Court and  the High Courts from its purview. 20.     Dr. N.M. Ghatate, learned senior counsel for the State  of Madhya Pradesh [Appellant in C.A. No. 1222-1224/85]   made additional submissions supporting the constitutional  validity of the Adhiniyam.  He contended that the view  taken by the Bombay High Court in upholding the  constitutional validity of the 1987 Act is correct.  Provisions  of the 1986 Act being similar to the Adhiniyam,  constitutional validity of the Adhiniyam may be upheld and  the Full Bench judgment of the High Court may be  reversed. 21.     We have carefully considered the rival contentions  advanced on behalf of the parties and Additional Solicitor  General. 22.     The British Parliament passed the Indian High Courts  Act, 1861 empowering ’Her Majesty’ to erect and establish  a High Court of Judicature at Bombay by way of Letters  Patent (section 1). Section 9 of the Act provided that the  High Courts to be established under that Act shall have and  exercise inter alia, civil jurisdiction, original, appellate and  all such powers and authority for and in relation to the  Administration of Justice as Her Majesty may by such  Letters Patent grant and direct subject to some limitations.          23.     By virtue of the above said Act, a Letters Patent was  issued on 26/06/1862 establishing the High Court in the  Presidency of Bombay. Clause 12 of the said Letters Patent  conferred ordinary original civil Jurisdiction on the High  Court. The Bombay High Court has been exercising original  jurisdiction within the limits of Greater Bombay.

24.     It is necessary to give certain background facts  relating to the Bombay City Civil Court Act, 1948 (for short  ‘the 1948 Act’).  1948 Act was passed by the Provincial  Legislature of Bombay on 10th May, 1948 with a view to  "establishing an additional Civil Court for Greater Bombay".   The said Act came into force on 16th August, 1948.  At  about same time the Bombay Legislature also passed the  Letters Patent (Amendment) Act, 1948 (Act No. 41 of 1948)  amending Clause 12 to exclude the original jurisdiction of  the High Court as regards cases which fall within the  jurisdiction of the small causes court and city civil courts.   The relevant provisions of the 1948 Act are set out below:- "1.     (1)........................................... (2)     It shall come into force on such date  as the State Government may, by  notification in the official Gazette,  appoint in this behalf.  

2.      .................................................

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3.      The State Government may by notification  in the Official Gazette, establish for the Greater  Bombay a court, to be called the Bombay City  Civil Court.  Notwithstanding anything contained  in any law, such court shall have jurisdiction to  receive, try and dispose of all suits and other  proceedings of a civil nature not exceeding fifty  thousand rupees in value, and arising within the  Greater Bombay, except suits or proceedings  which are cognizable -

(a)     by the High Court as a Court of  Admiralty or Vice-Admiralty or as a  Colonial Court of Admiralty, or as a  Court having testamentary, intestate  or matrimonial Jurisdiction, or  

(b)     by the High Court for the relief of  insolvent debtors, or  

(c)     by the High Court under any special  law other than the Letters Patent; or  

(d)     by the Small Cause Court;

Provided that the State Government may, from  time to time, after consultation with the High  Court, by a like notification extend the  jurisdiction of the City Court to any suits or  proceedings which are cognizable by the High  Court as a court having testamentary or  intestate jurisdiction or for the relief of insolvent  debtors.

4.      [Power of State Government to enhance  jurisdiction of city court] deleted by Mah. 46 of  1977, S.3]

       xxx             xxx             xxx             xxx

12.     Notwithstanding anything contained in any  law, the High Court shall not have jurisdiction to  try suits and proceedings cognizable by the City  Court;

       Provided that the High Court may, for any  special reason, and at any stage remove for trial  by itself any suit or proceeding from the City  Court."

25.     By Section 3 of Letters Patent (Amendment) Act,  1948, clause 12 of the Letters Patent was amended.  The  amended portion reads:-

".......the High Court shall not have such original  jurisdiction in cases falling within the jurisdiction  of the Small Causes Court at Bombay or the  Bombay City Civil Court."

26.     Under Section 4 of the 1948 Act, power was conferred  on the Provincial Government to enhance pecuniary  jurisdiction not exceeding Rs. 25,000/- by issuing  notification in that behalf.  The validity of the 1948 Act was  questioned before the Bombay High Court in the case of  Mulchand Kundanmal Jagtiani vs. Raman Hiralal

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Shah .  The Division Bench of the High Court upheld the  validity of the Act.  Thereafter on 28.1.1950, the Provincial  Government issued a notification under Section 4 of the  1948 Act enhancing the pecuniary jurisdiction of the city  civil court not exceeding Rs.25,000/-.   

27.     Exercising power under Section 4 of 1948 Act,  Provincial Government of Bombay issued notification No.  2346/50 which reads:-

"In exercise of the powers conferred by  Section 4 of the Bombay City Civil Court  Act,  1948 (Act XL of 1948) the  Government of Bombay is pleased to invest  with effect from and on the date of this  notification, the City Civil Court with  jurisdiction to receive, try and dispose of  suits and other proceedings of a civil nature  not exceeding twenty-five thousand rupees  in the value and arising within the Greater  Bombay subject however to the exceptions  specified in Section 3 of the said Act."

28.     The Division Bench of the Bombay High Court in  Narothamdas Jethabhai & Anr. vs. A.P. Phillips    declared the said aforesaid notification issued under Section  4 as ultra vires the Provincial Legislature.  This Court in  appeal in State of Bombay vs. Narothamdas Jethabhai  & Anr2 upset the judgment of the Division Bench of the  Bombay High Court and upheld the validity of the  notification enhancing the jurisdiction to Rs. 25,000/-  rejecting the contention that 1948 Act itself was ultra vires  the Provincial Legislature by reason of it being an  encroachment upon the field of legislation reserved for the  Centre under the Govt. of India Act, 1935.  Maharashtra  Civil Court (Enhancement of Pecuniary Jurisdiction and  Amendment) Act, 1977 (Act No. XLIV of 1977) was passed  whereby the jurisdiction of the city civil court was enhanced  from Rs. 25,000/- to Rs. 50,000/-.  The same was not  challenged.  The 1987 Act was enacted whereby unlimited  pecuniary jurisdiction came to be conferred upon the city  civil court and the State Government was empowered to  issue a notification for implementation of the said Act.  The  High Court of Bombay dismissed the writ petition No.  738/92 filed by the present appellant in C.A. No. 2452/92  having regard to various aspects and in particular relying on  the decision of this Court in Narothamdas (supra).  It may  be noted that the validity of 1948 Act was upheld by the  Division Bench of the High Court of Bombay as early as in  1949.  Notification issued enhancing the pecuniary  jurisdiction of the city civil court from Rs. 10,000/- to Rs.  25,000/- was upheld by this Court reversing the judgment  of Bombay High Court in Narothamhas.  Further, by Act  No. XLIV of 1977, the pecuniary jurisdiction of the city civil  court was enhanced from Rs. 25,000/- to Rs. 50,000/-, the  validity of which was not challenged.  Thus, from time to  time, the pecuniary jurisdiction of city civil court was  enhanced.  Such enhancement of jurisdiction was either  challenged unsuccessfully or not challenged.  In particular,  it may be kept in mind that the very contention which is  sought to be advanced now had been advanced before this  Court in Narothamdas which was rejected.  On earlier  occasions enhancement of pecuniary jurisdiction of city civil  court was upheld.  By the 1987 Act the pecuniary  jurisdiction of city civil court was further enhanced from

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Rs.50,000/- to unlimited value.  The High Court of Bombay  was established in 1862 in the Presidency Town of Bombay  having civil as well as criminal jurisdiction under the Letters  Patent.  In 1948, the criminal jurisdiction of the High Court  was taken away and vested in the Sessions Court.  The  Bombay High Court was having original pecuniary  jurisdiction above Rs. 50,000/- till 1987 Act came into  force.  The High Court will continue to have even after  implementation of 1987 Act the original jurisdiction in  Admiralty, Testamentary, Insolvency and Company  jurisdiction apart from its writ jurisdiction under Article 226  and 227 of the Constitution.

29.     In the State of Maharashtra as far as lower judiciary is  concerned, the original civil jurisdiction is vested in (a) Civil  Judge, Junior Division and (b) Civil Judge, Senior Division.   Civil Judges, Senior Division, are appointed for almost all  the towns and the cities in Maharashtra State excluding  Greater Bombay.  They have unlimited jurisdiction.  The  Civil Judges, Junior Division, have got pecuniary jurisdiction  upto Rs. 25,000/-.  The District Courts are having appellate  jurisdiction upto Rs. 50,000/- and beyond Rs. 50,000/-, an  appeal is provided to the High Court.   Civil Judges, Senior  Division, in cities like Thane, Pune, Nagpur, Nasik,  Aurangabad etc. are having unlimited pecuniary  jurisdiction.  Only the city civil court which has been  established for Greater Bombay was having limited  jurisdiction upto Rs. 50,000/- and under the 1987 Act, the  disparity has been removed by conferring unlimited  jurisdiction on city civil court like its counterparts in other  cities and towns.  Similarly, the jurisdiction of the Small  Causes Court is enhanced from Rs. 10,000/- to Rs.  25,000/- like Civil Judge, Junior Divison in other cities.   1987 Act is prospective.  Therefore, all the suits filed prior  to the implementation of it shall continue to remain with  High Court.   

30.     By the Maharashtra Act 46 of 1977, the jurisdiction of  the City Civil Court was raised to Rs. 50,000/- in value  arising within Greater Bombay.  By 1987 Act, Section 3 of  the Bombay City Civil Court Act, 1948 was amended  deleting the words "not exceeding Rs. 50,000/- in value."   As a result of the same, the City Civil Court could exercise  unlimited pecuniary jurisdiction.  Although 1987 Act was  passed in 1987, the State Government did not issue  notification to enforce it till August 20, 1991 appointing the  1st May, 1992 to be the date on which the provisions of the  1987 Act shall come into force.  By virtue of the said  notification, all suits and other proceedings of civil nature  arising within the Greater Bombay subject to exceptions  contained in Section 3 were required to be filed in the City  Civil Court at Bombay.  This resulted in the position that  suits and other civil proceedings of civil nature filed in the  High Court under Clause 12 of the Letters Patent would not  be received and tried on the ordinary original civil  jurisdiction of the High Court.  In the Transferred Cases (C)  8-11/89, constitutional validity of 1986 Act i.e.  "Maharashtra High Court (Hearing of Writ Petitions by  Division Bench and Abolition of Letters Patent Appeals) Act,  1986 was challenged as being beyond the competence of  the State Legislature and also violative of Article 19 of the  Constitution of India. In the Statement of Objects and  Reasons to this Act, it is clearly stated that the Act is "on  the lines of Madhya Pradesh Uchaha Nayalaya (Letters  Patent Appeals Samapti) Adhiniyam, 1981".  Under clause

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15, except in certain cases specified in the said clause,  appeals lie from judgment of a Single Judge to a Division  Bench of the High Court.  By the Notification dated 27th  May, 1987, 1st July, 1987 was notified as appointed day  from which the 1986 Act would come into force.  1986 Act  was enacted considering it expedient to provide for hearing  of writ petitions by Division Bench and for abolition of  Letters Patent Appeals in the High Court of Judicature at  Bombay.  Section 3 of the 1986 Act reads:-

"3.     (1) Notwithstanding anything  contained in the Letters Patent for the High  Court of Judicature at Bombay, dated the  28th December, 1865 and in any other  instrument having the force of law or in  any other law for the time being in force,  no appeal, arising from a suit or other  proceeding (including the applications  referred to in Section 2) instituted or  commenced, whether before or after the  commencement of this Act, shall lie to the  High Court from a judgment, decree or  order of a single Judge of the High Court  made on or after the commencement of  this Act, whether in the exercise of the  original or appellate jurisdiction of the High  Court.

(2)     Notwithstanding anything  contained in sub-section (1), all such  appeals pending before the High Court, on  the date immediately preceding the date of  commencement of this Act, shall be  continued and disposed of by that Court, as  if this Act had not been passed."

31.     By virtue of Section 3, appeals from orders of Single  Judge to Division Bench from original or appellate  jurisdiction were abolished.  In this regard, the contentions  advanced on behalf of the petitioners were that the  provisions of the Act are arbitrary and violative of Article 14  of the Constitution; provisions contained in 1986 Act are  beyond the legislative competence of the State Legislature;  that a right of appeal is a substantive right and one appeal  on facts of law is a necessary ingredient of a system of  justice; one appeal is provided in various State or Central  enactments; in case even one appeal is not provided, it  would result in serious consequences leading to  unreasonable denial of justice.   

32.     Per contra, the learned counsel for the respondents  urged that right of appeal is not a substantive right; merely  because appeal is not provided, an enactment otherwise  having legislative competence cannot be rendered invalid;  right of appeal is a statutory right which may or may not be  provided by a statute.  In other words, it is not a  constitutional right.

33.     Para 4 of the Statement of Objects and Reasons of  1987 Act reads:-

"4.     After having sufficient experience  of the working of the various Courts in the  State and having regard to the increase in  the value of property, and in the trading

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and commercial activities, in all urban  areas, Government considers that the  administration of justice in Greater Bombay  as well as in the mofussil should now follow  a uniform pattern.  There appears no  reason why every litigant in Greater  Bombay, whose suit or other proceeding is  above a certain pecuniary limit, should be  made to go to the High Court in the first  instance.  The High Court, as in most other  States in India, should ordinarily be a Court  of Appeal, and the time of its highly paid  and specialized Judges should not be  consumed in hearing original cases, some  of which may be of a small value compared  with the enormous increase in the value of  property or may be of an unimportant  nature."          34.     In the Statement of Objects and Reasons of 1986 Act,  inter alia it is stated thus:-

"2.     ....... The second part is really in  the nature of an exception to the first,  inasmuch as it provides, by way of  relaxation, appeals under the above clause  even in cases of Second Appeals, provided  the Judge concerned declares or certifies  that the case is fit one for appeal.  The  appeal provided by way of exception in the  second part of the clause has now been  barred by section 100-A inserted in the  Code of Civil Procedure, 1908, by Central  Act 104 of 1976 and there is as such no  further right of appeal against the decision  of a single Judge in Second Appeal with  certificate of fitness.  But in view of  mounting arrears in the High Court, to  discourage further litigation in the same  Court and to give finality to the decision of  the High Court, even though given by a  single Judge, it is necessary to abolish  appeals in the same Court from judgments  or orders of a single Judge, whether  exercising original or appellate jurisdiction,  on the lines of the Madhya Pradesh Uchcha  Nyayalaya (Letters Patent Appeals  Samapti) Adhiniyam, 1981 (M.P. XXIX of  1981) enacted in Madhya Pradesh".          35.     In relation to Entry in List I relating to constitution  and organization of Supreme Court and High Courts, Dr.  B.R. Ambedkar in the Constitutional Debate stated thus:-

"I do not wish to interrupt the debate, but I  would like to point out that we have  already passed Articles 295A, 193, 197,  201 and 207 which deal with the  constitution of the High Courts.  Under  those articles, except for pecuniary  jurisdiction, the whole of the High Courts  are placed, so far as their constitution,  organization and territorial jurisdiction are  concerned, in the Centre.  It seems to me,  therefore, that this amendment is out of

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order."

(emphasis supplied)

36.     In considering the legislative competence of  Maharashtra State in enacting the 1987 Act and 1986 Act  primarily we have to look to the relevant entries in the  Seventh Schedule of the Constitution of India.  List I \026 Union List "77. Constitution, organization, jurisdiction  and powers of the Supreme Court  (including contempt of such Court), and the  fees taken therein; persons entitled to  practice before the Supreme Court. 78.     Constitution and Organisation  (including vacations) of the High Courts  except provisions as to officers and  servants of High Courts; persons entitled to  practice before the High Courts. 79.     Extension of the jurisdiction of a  High Court to, and exclusion of the  jurisdiction of a High Court from, any union  territory." "95.    Jurisdiction and powers of all  courts, except the Supreme Court, with  respect to any of the matters in this List;  admiralty jurisdiction."

List II \026 State List

"3.     Administration of justice,  Constitution and organization of all courts,  except the Supreme Court and High  Courts" (prior to 3.1.1977.)

"65.    Jurisdiction and powers of all  courts, except the Supreme Court, with  respect to any of the matters in this list."

List III \026 (Concurrent List)

"11A.   Administration of justice;  constitution and organization of all courts,  except the Supreme Court and the High  Courts."

"13.    Civil Procedure, including all  matters included in the Code of Civil  Procedure at the commencement of this  Constitution, limitation and arbitration."

"46.    Jurisdiction and powers of all  courts, except the Supreme Court, with  respect to any of the matters in this List."

37.     As is clear from the Entries extracted above, Entry 77  in List I deals with the constitution, organization,  jurisdiction and powers of the Supreme Court.  Entry 78  relates to only constitution and organization of the High  Courts and not with the jurisdiction and powers of the High  Courts unlike in Entry 77 dealing with the jurisdiction and  powers of Supreme Court in addition to constitution and  organization.  Jurisdiction and powers of High Court are

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dealt with as a separate topic under Entry 11A of List III,  which was in Entry 3 of List II prior to 42nd Constitution  Amendment Act. The general jurisdiction of the High Courts  falls in ’administration of justice’, i.e., under Entry 11A in  the Concurrent List.  Entry 95 of the Union List, Entry 65 of  the State List and Entry 46 of the Concurrent List refer to  special jurisdictions of the courts relating to the matters  contained in the respective lists.  Entry 95 deals with the  power of Parliament to confer jurisdiction and powers of all  the courts except the Supreme Court with respect to any of  the matters in List I.  Similarly, Entry 65 of the List II deals  with the power of State Legislature to confer jurisdiction  and powers on all the courts except the Supreme Court with  respect to the matters contained in the said list.  Entry 46  in the Concurrent List refers to the power and jurisdiction of  all the courts except the Supreme Court with respect to all  the matters contained in the Concurrent List.  It may be  noted here that one of the items in the Concurrent List is  Civil Procedure Code under Entry 13. 38.     In our view, the State Legislature has power to confer  general jurisdiction on all the courts except the Supreme  Court under Entry 11A in the Concurrent List falling within  the meaning of ’administration of justice’.  Hence, the 1987  Act is within the competence of the State Legislature in the  light of the discussion and reasons to follow. 39.     The State Legislature was the sole repository of power  to confer jurisdiction on all the courts except the Supreme  Court and High Court under Entry 3 of the State List prior to  Forty-second Amendment) of 1976 and thereafter the  Parliament as well as the State Legislatures have power to  confer general jurisdiction on all the courts including the  High Courts under Entry 11A of the Concurrent List.  Entry  46 of the Concurrent List deals with the special jurisdiction  in respect of the matters in the Concurrent List.  One of the  matters in the Concurrent List is the Civil Procedure Code.   The combined reading of Entry 11A, Entry 13 and Entry 46  of the Concurrent List makes the position clear that the  1987 Act is not beyond the legislative competence of the  State Legislature when it deals with pecuniary jurisdiction of  civil courts. 40.     From careful reading of Entries 77 and 78 of the Union  List it is clear that Entry 77 not only deals with the  ’constitution’ and ’organisation’ but also with ’jurisdiction’  and powers’ in respect of Supreme Court falling within the  exclusive domain of the Parliament.  Entry 11A in the  Concurrent List deals with the ’administration of justice’ in  all the courts and the ‘constitution and organization’ of all  courts, except the Supreme Court and the High Courts.   Thus, it is clear that the Parliament is the sole repository of  powers as far as the ’constitution’, ’organisation’,  ’jurisdiction’ and ’powers’ of the Supreme Court is  concerned.  Conscious omissions of the words ’jurisdiction’  and ’powers’ in Entry 78, looking to the said words included  in Entry 77, it is clear that the ’jurisdiction’ and ’power’ of  the High Courts are dealt with as a separate topic under the  caption ’administration of justice’ under Entry 11A of the  Concurrent List.  The exclusion of ’jurisdiction’ and ’powers’  from Entry 78 appears to be meaningful and intended to  serve a definite purpose in relation to bifurcation or division  of legislative powers relating to conferment of general  jurisdiction of High Courts. 41.     Entries 77 and 78 of the Union List deal with  ’constituion’ and ’organisation’ of the Supreme Court and  the High Courts because after coming into force of the  Constitution, the Supreme Court was required to be set up

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and so also the High Courts were required to be established  and/or reconstituted.  The expressions ’constitution’ and  ’organisation’ of the High Courts in Entry 78 are referable to  Articles 2, 3 and 4 of the Constitution.  Article 2 empowers  the Parliament to admit into the Union or establish new  States, Article 3 deals with the formation of new States and  alterations of areas, boundaries or names of the existing  States and Article 4 provides that laws made under Articles  2 and 3 may provide for amendment of the First and Fourth  Schedules and supplemental, incidental and consequential  matters.  The words ’constitution’ and ’organisation’ have  their own meaning as against expressions ’jurisdiction’ and  ’powers’, but in the scheme of the Constitution the subject  ’constitution’ and ’organisation’ of Supreme Court and High  Courts rests with the Union. 42.     The general jurisdiction of the High Courts is dealt  with in Entry 11A under caption ’administration of justice’,  which has a wide meaning and includes administration of  civil as well as criminal justice.  The expression  ’administration of justice’ has been used without any  qualification or limitation wide enough to include the  ’powers’ and ’jurisdiction’ of all the courts except the  Supreme Court.  The semicolon (;) after the words  ’administration of justice’ in Entry 11A has significance and  meaning.  The other words in the same Entry after  ’administration of justice’ only speak in relation to  ’constitution’ and ’organisation’ of all the courts except the  Supreme Court and High Courts.  It follows that under  Entry 11A State Legislature has no power to constitute and  organize Supreme Court and High Courts.  It is an accepted  principle of construction of a constitution that everything  necessary for the exercise of powers is included in the grant  of power.  The State Legislature being an appropriate body  to legislate in respect of ’administration of justice’ and to  invest all courts within the State including the High Court  with general jurisdiction and powers in all matters, civil and  criminal, it must follow that it can invest the High Court  with such general jurisdiction and powers including the  territorial and pecuniary jurisdiction and also to take away  such jurisdiction and powers from the High Court except  those, which are specifically conferred under the  Constitution on the High Courts.  It is not possible to say  that investing the city civil court with unlimited jurisdiction  taking away the same from the High Court amounts to  dealing with ’constitution’ and ’organisation’ of the High  Court.  Under Entry 11A of List III the State Legislature is  empowered to constitute and organize city civil court and  while constituting such court the State Legislature is also  empowered to confer jurisdiction and powers upon such  courts inasmuch as ’administration of justice’ of all the  courts including the High Court is covered by Entry 11A of  List III, so long as Parliament does not enact law in that  regard under Entry 11-A.  Entry 46 of the Concurrent List  speaks of the special jurisdiction in respect of the matters  in List III.  Entry 13 in List III is ’...Code of Civil Procedure  at the commencement of the Constitution...’.  From Entry  13 it follows that in respect of the matters included in the  Code of Civil Procedure and generally in the matter of civil  procedure the Parliament or the State Legislature, as  provided by Article 246(2) of the Constitution, acquire the  concurrent legislative competence.  The 1987 Act deals with  pecuniary jurisdiction of the courts as envisaged in the  Code of Civil Procedure and as such the State Legislature  was competent to legislate under Entry 13 of List III for  enacting 1987 Act.

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43.     This view gets support from the various decisions in  which entries in Lists I, II and III are interpreted touching  the question as to the legislative competence of a State. 44.     The contention of the learned counsel for the appellant  is that the words "constitution and organisation of the High  Courts" used in Entry 78 of List I are wide enough to take  within its ambit, not only the constitution and organization,  but, also the "general jurisdiction" of the High Courts. In  contrast, it is contended that Entry 95 in List I pertains to  the legislative power of Parliament to invest special  jurisdiction in all courts, except the Supreme Court, with  respect to any of the matters enumerated in List I.  Correspondingly, Entry 46 of the Concurrent List vests  power in Parliament as well as the State legislature to  confer special jurisdiction and powers on all courts, except  the Supreme Court, with respect to any of the matters in  List III.  Similarly, Entry 65 of List II enables the State  legislature to confer jurisdiction and powers on all courts,  except the Supreme Court, with respect to any of the  matters in List II.

45.     Strong reliance is placed on certain observations of  this Court in State of Bombay v. Narothamdas  Jethabhai & Anr. (supra), which dealt with the  interpretation of Entries 1 & 2 of List II (Provincial List) of  the Government of India Act, 1935. Entry 1 of List II read:  "\005.the administration of justice; constitution and  organization of all courts except the Federal Court\005.". Entry  2 of List II read: "Jurisdiction and powers of all courts  except the Federal Court, with respect to any of the matters  in this List\005.".     The contention urged before this Court was  that the words "administration of justice and constitution  and organization of courts" occurring in Entry 1 of the  Provincial List should be read as exclusive of any matter  relating to jurisdiction of courts. Rejecting the arguments,  the Court observed: - "It is to be noted that the right to set up  courts and to provide for the whole  machinery of administration of justice has  been given exclusively to the Provincial  Legislature.  Under Section 101 of the  North America Act, the Parliament of  Canada has a reserve of power to create  additional courts for better administration  of the laws of Canada but the Indian  Constitution Act of 1935 does not give any  such power to the Central Legislature.   Courts are to be established by the  Provincial Legislature alone. The word  ’court’ certainly means a place where  justice is judicially administered.  The  appointment of  Judges and officers or the  mere setting apart of a place where the  Judges are to meet, are not sufficient to  constitute a court. A court cannot  administer justice unless it is vested with  jurisdiction to decide cases and "the  constitution of a court necessarily includes  its jurisdiction." (vide Clement’s Canadian  Constitution, 3rd Edn., p. 527)."   (Per  Mukherjea,J.)

It was also observed: - "Entry 1 of List II of the Government of  India Act, 1935 uses the expressions

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"administration of justice and constitution  of all courts" in a perfectly general manner.  No particular subject is specified to which  the administration of justice might relate or  for which a court might be constituted. It  can, therefore, be legitimately interpreted  to refer to a general jurisdiction to decide  cases not limited to any particular  subject\005\005.The distinction between general  and particular jurisdiction has always been  recognized in the legislative practice of this  country prior to the passing of the  Constitution Act of 1935 and also after  that." (Per Mukherjea,J.)

46.     It was also observed that "the contents of general  jurisdiction are always indeterminate and are not  susceptible of any specific enumeration." The words  "administration of justice" and "constitution and  organization of courts" occurring in entry 1 of the Provincial  List were construed in a restricted sense so as to exclude  the scope of "jurisdiction and powers of courts" dealt with  specifically in entry 2. (Per Patanjali Sastri, J.). Taking  notice of the fact that on the date when the Government of  India Act, 1935 was passed, there were in existence in the  different Provinces a large number of courts of law and the  administration of justice throughout the Provinces was in  the hands of these provincial courts, that the civil courts in  the Province used to try all suits and proceedings of a civil  nature which were triable under the Civil Procedure Code,  and the criminal courts used to try all criminal cases triable  under the Code of  Criminal Procedure, it was pointed out  that the jurisdiction and power of the courts were not  confined to cases in regard to the subjects stated in List II,  nor were they debarred from dealing with cases relating to  matters which had been assigned to List I. The jurisdiction  of the courts depended in civil cases on a "cause of action"  giving rise to a civil liability, and in criminal cases on the  provisions made in the  Code  of Criminal Procedure as to  the venue of the trial and other relevant matters. Fazal Ali,  J. observed: - "It seems to me that the Government of  India Act, 1935, did not contemplate any  drastic change in the existing system of  administration of justice, but what it  contemplated was that that system should  continue subject to future legislation by the  proper Legislature, Central or Provincial,  barring the jurisdiction of courts or  conferring jurisdiction or power on special  courts with regard to the matters included  in the appropriate Legislative Lists, should  there be any occasion for such special  legislation."  

He further observed:  

"in my opinion, there is nothing in the Act  of 1935 to show that there was any  intention on the part of its framers to affect  the machinery so drastically as to confine it  to the administration of a mere partial or  truncated kind of justice relating only to

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matters specified in List II."

47.     The learned counsel for the appellant, however,  attempts to distinguish this judgment by pointing out that  when the Government of India Act, 1935 was passed, the  scheme of distribution of legislative powers relating to the  constitution and organization of the High Courts was  exclusively left with the Provincial Legislature. The  Provincial Legislature was fully empowered to make laws  relating to the "constitution and organization of all courts  except the Federal Court" (vide Entry 1 of the Provincial  List).  In view of this position, the Bombay Provincial  Legislature was held to have legislative competence to  enact the Bombay City Civil Court Act of 1948 which  incidentally trenched upon the jurisdiction of the High  Court, and it was essentially an exercise of power within the  competence of the Provincial Legislature relatable to Entry 1  of List II of the Government of India Act, 1935.

48.     It is not possible to accept that Narothamdas  Jethabai (supra) lays down that the words "constitution  and organization of courts" necessarily mean, throughout  the Constitution, a situation where the appropriate  legislature which is empowered to constitute and organize a  court is necessarily invested with "general jurisdiction", as  contended.   49.     The judgment of the learned Single Judge of the  Calcutta High Court in Amarendra Nath Roy Chowdhury  v. Bikash Chandra Ghose and Anr. , on which reliance  was placed before this Court, has put the matter in proper  perspective. This was also a case where the petitioner  before the High Court of Calcutta challenged the validity of  the City Civil Court Act, being West Bengal Act XXI of 1953,  on the ground of legislative competence. It was urged  before the court that, while under the Government of India  Act, 1935, the constitution and organization of a High Court  as also its powers were Provincial subjects, under the  Constitution these subjects were expressly taken away from  the legislative competence of the State Legislature and  were made Union subjects. Thus, it was contended that the  State Legislature had no competence to make any law  touching upon the constitution and organization of the high  court, which necessarily included the "general jurisdiction"  of the high court. The judgment of this Court in  Narothamdas Jethabai (supra) was also cited by the  petitioner. After carefully considering the observations of all  the learned Judges who comprised the Bench in  Narothamdas Jethabai, and after considering the speech  made by Dr. B.R. Ambedkar on the floor of the Constituent  Assembly, the learned Single Judge summarized the  resultant legal position thus, in our opinion correctly, in  Paragraph 24: "24. In my opinion the present position  may be summarized as follows:-

(1)     The ’constitution and organization,  jurisdiction and powers’ of the Supreme  Court, are Union subjects,

(2)    While ’jurisdiction and powers’ of the  Supreme Court have been  expressly  included in Entry 77 of List I, these words  have been deliberately left out in Entry 78  of the same List, in respect of the High  Courts. This omission is not supplied by

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Entry 95 because that Entry only enables  jurisdiction and powers to be given in  respect of the matters enumerated in List I.  To speak of ’jurisdiction and powers’ of the  High Courts in respect of ’constitution and  organization’ of the High Courts would be  meanineless.

(3)     If nothing else was to be found  relating to the subject, in any other part of  the Constitution, then it might have been  necessary to imply that it was the intention  of the framers of the Constitution to include  the concept of ’jurisdiction and powers’  within the phrase ’constitution and  organisation’ of the High Courts in Entry  78.  In that event, the result would be that  if a High Court was constituted or  organized by a Parliamentary Statute, it  would automatically be vested with general  jurisdiction to administer justice.

(4)     This construction, however, is not  permissible because it is in conflict with  Entry 3 in List II or Entry 3 read with Entry  65.  It is only the State Legislature that can  vest a High Court with general jurisdiction  to administer justice.

(5)     While it is controversial as to  whether Entry 78 in List I includes  ’jurisdiction and powers’ of the  High Court,  it is clear that under Entry 3 of List II or  Entry 3 read with Entry 65, ’administration  of justice’ is a State subject and the  ’jurisdiction and powers’ of all Courts in the  State including the High Court in respect of  administration of justice, which must  include general jurisdiction, is a State  subject.

(6)     This construction does give rise to  a curious result, namely, that Parliament is  given under Entry 78 a power to set up a  High Court but not to vest it with  jurisdiction excepting in a limited way  under Entry 95.  Ordinarily, and in so far as  legislative practice is concerned, this state  of things should not happen, but it has in  fact happened under our Constitution.  

(7)     But the evil effects inherent in such  an unusual provision in the Constitution is  mitigated by the fact that: (a) for the most  part, the ’constitution and organisation’ of  the High Courts have already been  provided for in the body of the  Constitution, and (b) in the case of the  formation of new States or reorganization  of existing States, there is ample power  under Art. 4 of the Constitution to clothe  Parliament with the power to invest High  Courts with the necessary ’jurisdiction and  powers’ of every description.

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(8)     The State Legislature being the  appropriate body to legislate in respect of  ’administration of justice’, and to invest all  Courts within the State including the High  Court, with general jurisdiction and powers  in all matters civil and criminal, it must  follow that it can invest a High Court with  general jurisdiction and powers (including  territorial and pecuniary jurisdiction), and  also take away such jurisdiction and  powers from the High Court.

(9)     So far as the Calcutta City Civil  Court is concerned, there can be no  question that the State Legislature is  competent to constitute such a Court and  vest it with general jurisdiction, since that  comes specifically and plainly within the  scope of Entry No.3 or Entry No.3 read with  Entry 65 in List II. The question is as to  whether it can at the same time take away  any part of the jurisdiction and powers of  the High Court.

(10)    It has been argued that the setting  up of the City Civil Court, with a specified  jurisdiction, and the taking away of the  same jurisdiction from the High Court, was  nothing more or less than doing something  which affected the ’constitution and  organisation’ of the High Court. This again  depends on the answer to the question as  to whether the words ’constitution and  organization’ necessarily include the  concept of ’jurisdiction and powers’  meaning thereby, general jurisdiction and  powers relating to the administration of  justice. So far as these words are used in  Entry 78 of List I, the answer must clearly  be in the negative. The constitution and  organization of High Courts has been made  a Central subject in this limited sense  because:

(a) It was necessary to have uniformity  in the organization of all High Courts and  this could only be effected by  Parliament.  

(b) The Constitution provides for  extension of the jurisdiction  of a High  Court beyond the State where it has its  principal seat and also for a common  High Court in two States or two States  and a Union territory.  This can only be  effected by Parliament. But beyond this,  no necessity was felt of granting to  Parliament the power to invest High  Courts with general jurisdiction for the  administration of justice, which was a  provincial subject before  and continues  to be a State subject.

(11)    It follows that the taking away of  some of the general jurisdiction and powers

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of the High Court and vesting the same in  the City Civil Court would not necessarily  mean that the State Legislature was doing  anything which could be said to be an  infringement of Entry 78 in List I. It was  doing what it had power to do under Entry  3, or under Entry 3 read with Entry 65, of  List.II."   50.     Our attention was drawn by the learned counsel for  the appellant to Page 774 of the Constituent Assembly  Debates and also to some other parts of the speech made  by Dr. B.R. Ambedkar and Shri Alladi Krishnaswami Ayyar  during the debates in the Constituent Assembly, when Entry  52 of the Draft Constitution was being debated upon. He  drew our attention to the passage "\005. the only matter that  is left to the Provincial Legislatures is to fix jurisdiction of  the High Courts in a pecuniary way or with regard to the  subject matter. The rest of the High Court is placed, within  the jurisdiction of the Centre. Obviously when considering  entries in the Union List which are meant to give complete  power to the Centre, we were bound to make good this  lacuna and to bring in the High Courts which, as I said, by  virtue of these articles excepting for two cases have been  completely placed within the purview of the Parliament."

51.     In our view, the portion of the speech of Dr. B.R.  Ambedkar on the floor of the Constituent Assembly referred  to on Page 543 of the Calcutta High Court’s judgment is  more appropriate one which, in effect, throws  light on the  issue. Thus, the only purpose of the amendment was to  bring uniformity as far as the ’constitution and organization  of the High Courts’ in the different States were concerned.  Particularly taking notice of the fact that the High Courts in  different Provinces had been functioning for several years  and there was no consistency in their established practices,  it was proposed to bring all the High Courts in the States  under the jurisdiction of Parliament so that there was some  uniformity in the organization of the different High Courts in  India.  As the judgment of the Calcutta High Court correctly  points out, Entry 3  (prior to 3.1.1977) (or Entry 11A after  3.1.1977) read with Entry 65 of List II ("administration of  justice") is a State subject and the jurisdiction and powers  of all courts in the State, including the High Courts, in  respect of administration of justice, which must include  "general jurisdiction" is a State subject. 52.     It is true that the Calcutta High Court noticed the  curious result that followed from the Constitutional entries  as were available at the material time. It noticed that while  under Entry 78 of List I, Parliament was given power to set  up the High Courts, but did not have power to invest them  with general jurisdiction, but had power to invest them with  special jurisdiction under Entry 95 of List I.  The State  Legislature would have the jurisdiction to invest the High  Courts, set up by Parliament, with the necessary general  jurisdiction under Entry 3 (at the material time) of List II  ("Administration of Justice"); both Parliament and the State  legislature also had the competence to make laws to invest  the High Courts with special jurisdiction under Entry 65 of  List III. Perhaps, the situation then was somewhat  anomalous and led to the curious result noticed by the High  Court of Calcutta at the material time.  However, Entry 3 of  List II was amended by the Constitution (42nd Amendment  Act of 1976) with effect from 3.1.1977. The words  "administration of justice; constitution and organization of

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all courts except the Supreme Court and the High Courts"  were removed from Entry 3 and inserted as Entry 11 A in  the Concurrent List.  Consequently, on and after 3.1.1977  both Parliament and State Legislature are competent to  legislate with respect to the subject "administration of  justice" which would be wide enough to invest the High  Court "constituted and re-organised" by Parliament with the  general jurisdiction.  We have already noticed the power of  both the Parliament and State Legislature to legislate within  their respective spheres so as to invest the High Court with  special jurisdiction. 53.     Thus, on and after 3.1.1977 the situation appears to  be as under:- a)      Parliament alone has the competence to legislate with  respect to Entry 78 of List I to ’constitute and  organize’ the High Court; b)      Both Parliament and State Legislature can invest such  a High Court with general jurisdiction by enacting an  appropriate legislation referable  to ’administration of  justice’ under Entry 11A of List III. c)      Parliament may under Entry 95 of List I invest the  High Court with jurisdiction and powers with respect  to any of the matters enumerated in List I. d)      State Legislature may invest the High Court with the  jurisdiction and powers with respect to any of the  matters enumerated in List II e)      Both Parliament and State Legislature may by  appropriate legislation referable to Entry 46 of List III  invest the High Court with jurisdiction and powers  with respect to any of the matters enumerated in List  III.

54.     In this view of the matter, we are unable to accept the  contention that Parliament alone has the exclusive  competence to invest the High Court with the "general  jurisdiction" referable to "constitution and organization of  the High Court".

55.     It is true that there are several provisions in Articles  216, 217, 221, 222, 223 and 224 wherein the President of  India and the Government of India alone have been given  powers, in the matters stated therein. This by itself does  not militate against the view that we are inclined to take.  56.     The observations in State of Maharashtra v. Kusum  Charudutt Bharma Upadhye , (Para 7) were pressed in  service in support. All that the Bombay High Court said is:  "......under the Constitution, Parliament has  by ordinary law the power to constitute and  organize, that is, to create, new High  Courts as also to enlarge or abridge the  jurisdiction of all High Courts, including the  High Courts which were in existence at the  commencement of the Constitution".  

57.     These observations were made in connection with the  questions before the Special Bench of the Bombay High  Court, whether an appeal would lie under Clause 15 of the  Letters Patent from the judgment of a single Judge of the  High Court under Article 226 of the Constitution in a  petition filed on the Original Side or the  Appellate Side of  the High Court; and, whether such an appeal would lie from  the judgment of a Single Judge of the High Court in a  petition filed under Article 227 of the Constitution of India;  and also, whether an appeal would lie from an interlocutory  order made by a single Judge of the High Court appointing

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a receiver in a writ petition under Article 226 of the  Constitution of India.  The Bombay High Court did not  express its view that Parliament alone had such powers, nor  about the meaning to be given to the expression  "administration of justice", which is now placed in the  Concurrent List on and after 3.1.1977. The contention,  therefore, cannot be accepted.

58.     Reference was made to the judgment of the Full  Bench of the Delhi High Court in Geetika Panwar v.  Government of NCT of Delhi & Ors.4. The learned  counsel contended that the submissions of the learned  Attorney General made before the Delhi High Court, as  noticed in this judgment, were indicative of the stand of the  Government of India in the matter.  Placing reliance on the  doctrine of contemporanea expositio the learned counsel  urged that the constitutional interpretation as understood  by the executive should be accepted by us.   We are afraid,  when it comes to interpretation of the Constitution, it is not  permissible to place reliance on contemporanea exposition  to the extent urged. Interpretation of the Constitution is the  sole prerogative of the Constitutional Courts and the stand  taken by the executive in a particular case cannot  determine the true interpretation of the Constitution.  The  learned counsel urged that, as a result of judgment of the  full Bench of the Delhi High Court in Geetika Panwar case  (supra) and striking down of Delhi High Court Amendment  Act 2001 as ultra vires the Legislative Assembly of NCT of  Delhi, Parliament stepped in by enacting Delhi High Court  (Amendment) Act, 2003.  According to the learned counsel  this was also indicative of the fact that the Parliament had  recognized and accepted the construction put on the  constitutional provisions in Geetika Panwar as correct and  responded by a curative legislation.  The fact the Parliament  responded to the situation by enacting Delhi High Court  Amendment Act, 2003 also cannot by itself show that the  view taken by the High Court of Delhi in Geetika Panwar  was correct. It is possible that the executive might have  taken the shorter course of amending the legislation instead  of challenging the view taken by the Delhi High Court  before this Court.  

59.     The reference to Section 30 of the Andhra Act, 1953  or to the provisions of Section 49 of the State  Reorganisation Act, 1956 is of no avail.  The investment of  power in such cases, where a High Court is set up in a  reorganized State, is referable to Article 4 of the  Constitution, which is an independent power not referable  to Entry 78 of List I.

60.     In O.N. Mohindroo v. The Bar Council of Delhi &  Ors.  after analyzing Entries 77, 78, and 95 of List I,  Entry  65 of List II and Entry 46 of List III, this Court observed:     "The scheme for conferring jurisdiction and  powers on courts is (a) to avoid duplication  of Courts. Federal and State Courts as in  the Constitution of the United States, (b) to  enable Parliament and the State  Legislatures to confer jurisdiction on courts  in respect of matters in their respective  lists except in the case of the Supreme  Court where the legislative authority to  confer jurisdiction and powers is exclusively  vested in Parliament.  In the case of the  Concurrent List both the legislatures can

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confer jurisdiction and powers on courts  except of course the Supreme Court  depending upon whether the Act is enacted  by one or the other. Entry 3 in List II  confers legislative powers on the States in  the matter of "Administration of Justice;  constitution and organization of all courts,  except the Supreme Court and the High  Courts: officers and servants of the High  Courts: procedure in rent and revenue  courts; fees taken in all courts except the  Supreme Court." It is clear that except for  the constitution and the organization of the  Supreme Court and the High Courts the  legislative power in the matter of  administration of justice has been vested in  the State Legislatures.   The State  Legislatures can, therefore enact laws,  providing for the constitution and  organization of courts except the Supreme  Court and the High Courts, and confer  jurisdiction and powers on them in all  matters, civil and criminal, except the  admiralty jurisdiction. It would, of course,  be open to Parliament to bar the  jurisdiction of any such court by special  enactment in matters provided in Lists I  and III where it has made a law but so long  as that is not done the courts established  by the State Legislatures would have  jurisdiction to try all suits and proceedings  relating even to matters in Lists I and III.  Thus, so far as the constitution and  organization of the Supreme Court and the  High Courts are concerned, the power is  with Parliament. As regards the other  courts, Entry 3 of List II confers such a  power on the State Legislatures.  As  regards jurisdiction and powers, it is  Parliament which can deal with the  jurisdiction and powers of the Supreme  Court and the admiralty jurisdiction.  Parliament can confer jurisdiction and  powers on all courts in matters set out in  List I and List III where it has passed any  laws. But under the power given to it under  entry 3 in List II, a State Legislature can  confer jurisdiction and powers on any of  the courts except the Supreme Court in  respect of any statute whether enacted by  it or by Parliament except where a Central  Act dealing with matters in Lists I and III  otherwise provides. That these entries  contemplate such a scheme was brought  out in State of Bombay v. Narothamdas,  where it was contended that the Bombay  City Civil Court Act, 40 of 1948,  constituting the said Civil Court as an  additional court was ultra vires the  Provincial Legislature as it conferred  jurisdiction on the new court not only in  respect of matters in List II of the Seventh  Schedule of the Government of India Act,  1935 but also in regard to matters in List I  such as promissory notes in item 8 of List

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I.  Rejecting the contention it was held that  the impugned Act was a law with respect to  a matter enumerated in List II and was not  ultra vires as the power of the Provincial  Legislature to make laws with respect to  "administration of justice" and "constitution  and organization of all courts" under item 1  of List II was wide enough to include the  power to make laws with regard to the  jurisdiction of courts established by the  Provincial Legislature; that the object of  item 53 of List I, item 2 of List II and item  15 of List III was to confer such powers on  the Central and the Provincial Legislatures  to make laws relating to the jurisdiction of  courts with respect to the particular  matters that are referred to in List I and II  respectively and the Concurrent List, and  that these provisions did not in any way  curtail the power of the Provincial  Legislature under item 1 of List II to make  laws with regard to jurisdiction of courts  and to confer jurisdiction on courts  established by it to try all causes of a civil  nature subject to the power of the Central  and Provincial Legislatures to make special  provisions relating to particular subjects  referred to in the Lists.  It may be  mentioned that item 53 in List I, items 1  and 2 in List II and item 15 in List III in the  Seventh Schedule to the 1935 Act more or  less correspond to entries 77, 78 and 95 in  List I, entries 3 and 65 in List II and entry  46 in List III of the Seventh Schedule to  the Constitution."

61.     The constitutional validity of the City Civil Court Act of  Calcutta being West Bengal Act No. XXI of 1953 which had  received the assent of the President under which the  pecuniary jurisdiction was conferred on the city civil court  above Rs. 5,000/- but not exceeding Rs. 10,000/- was  challenged on various grounds similar to the grounds raised  challenging the validity of the 1987 Act.  Sinha J. learned  Judge of the Calcutta High Court held that the West Bengal  Act No. XXI of 1953 was intra vires in Amarendra Nath  Roy Chowdhury vs. Bikash Chandra Ghosh & Anr.7.   The pecuniary jurisdiction was enhanced from Rs. 10,000/-  to Rs. 50,000/- and again to Rs. 1,00,000/-.  The validity of  the Act as well as the amendment of increasing the  jurisdiction to Rs. 1,00,000/- was again challenged before  the Calcutta High Court in Indu Bhushan De & Ors. Vs.  The State of West Bengal & Ors. .  The Division Bench  upheld the validity of the Act including the amendments.   The matter reached this Court with a contention that the  Parliament alone had legislative competence to make the  law affecting the original side jurisdiction of the High Court  and, therefore, the State Legislature had no power to pass  any law dealing with the jurisdiction of the High Court.  This  Court in Indu Bhushan De and Ors. Vs.  State of West  Bengal and others  dealing with the aforementioned  contention, after setting out Entries 77, 78 and 95 in List I,  Entries 3 (new Entry No. 11-A in the Concurrent List) and  Entry 65 in List II and Entry 46 in List III, and reiterating  the law laid down by the Constitution Bench of this Court in

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Narothamdas (supra), observed that "this decision  (Narothamdas) of the Constitution Bench clearly negatives  the claim of the appellant that the impugned Act was ultra  vires the jurisdiction of the West Bengal Legislature.   Admittedly, the Act received Presidential assent and was,  therefore, competent to bring about a change in the  prevailing position obtaining under the Letters Patent of the  Calcutta High Court."  In the same judgment, this Court  further observed thus: "A similar challenge as in the present  dispute had also been raised before the  Calcutta High Court in the case of  Amarendra Nath Roy Chowdhary vs. Bikash  Chandra Ghosh [AIR 1957 Cal. 535] and a  learned Single Judge relying on the  decision of Constitution Bench referred to  above had held that the Act was intra vires  the State Legislature.  We are of the view  that the decision of the Constitution Bench  is a clear and binding precedent against the  appellant’s stand." (emphasis supplied)

62.     Having observed thus, this Court approved the  aforementioned judgment in Amarendra Nath Roy  Chowdhary (supra).

63.     This Court in Narothamdas and Indu Bhushan De  (supra) clearly laid down that power of legislature to confer  or take away general jurisdiction of all courts excepting the  Supreme Court is a separate topic and forms part of the  "administration of justice" and not part of ‘constitution’ and  ‘organisation’ of High Courts.   

64.     In first round in Mulchand Kundanmal Jagtiani vs.   Raman Hiralal Shah5 the Division Bench of the Bombay  High Court upheld the validity of the 1948 Act.  Thereafter,  on 20.1.1950, the Provincial Government issued a  notification conferring on the city civil court jurisdiction to  receive, try and dispose of all suits and other proceedings  of civil nature not exceeding Rs. 25,000/- in value arising  within Greater Bombay.  In Narothamdas vs. A.P.  Phillips6, the Division Bench of the Bombay High Court  declared the said notification as invalid on the ground that  notification amounted to delegation of legislative function.  In the appeal filed by the State, this Court reversed the  judgment of the Bombay High Court in State of Bombay  vs.  Narothamdas2 holding that Section 4 of 1948 Act did  not amount to delegation of legislative power and that the  notification dated 20.1.1951 was intra vires.  The  respondents had challenged the validity of the 1948 Act  before this Court on the ground that the Act was ultra vires  the Provincial Legislature by reason of encroachment upon  the field of legislation reserved for Centre under List I of  Seventh Schedule of the Govt. of India Act, 1935 which was  negatived as already stated above.  Madras High Court in  Ahmed Moideen Khan & Ors. vs.  Inspector of ‘D’  Division  dealt with challenge to the Act No. XXXIV of  1955 under which the State Legislature divested criminal  jurisdiction of Madras High Court and vested it in the  sessions court.  There also challenge was on the ground  that the Act was not within the competence of State  Legislature inasmuch as it amounted to re-constitution or  re-organisation of the High Court within the meaning of  Entry 78 of List I.  The Division Bench, overruling all the

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contentions, held that the State Legislature was competent  to enact the Act No. XXXIV of 1955 under Entry 3 of List II  (administration of justice).  The Division Bench also stated  that the State Legislature has power to pass legislation  under Entries 1, 2 and 46 of List III i.e. (i) criminal law  including matters included in Indian Penal Code; (ii)  Criminal Procedure Code ..... and Entry 46 of List III which  confers power on the State to legislate in respect of the  subjects contained in the Concurrent List.

65.     When the State Legislature of Kerala enacted law  conferring power on the Division Bench of the High Court to  hear appeals against the orders of Single Judge passed  under Article 226, it was challenged on the ground that the  subject was covered by Entry 78 of List I. In Indo- Mercantile Bank Ltd v s. Commissioner, Quilon  Municipality , the Kerala High Court held that the State  Legislature was fully competent to pass the Act by virtue of  its powers under Articles 225, 246(3) read with Seventh  Schedule List II Entry 3 of the Constitution.

66.     A Division Bench of the Mysore High Court in  Shivarudrappa Girimallappa Saboji & Anr. vs.  Kapurchand Meghaji Marwadi & Ors.  held that  Sections 19 and 29(2)(c) of the Mysore Civil Court Act,  1964 were constitutionally valid as the same were within  the competence of the State Legislature under Entry 3 of  List II i.e. "Administration of Justice" observing thus:-

"........If the core of Administration of  justice is the exercise of judicial power  which is also understood as the exercise of  jurisdiction, any legislation on the exercise  of such judicial power or jurisdiction is  legislation on "administration of justice"  and is therefore, what is authorized by the  3rd Entry of the said List.  If Legislation on  "administration of justice" in the High Court  is as already explained also within the field  of that Entry then Article 246(3) of the  Constitution empowers the State  Legislature to make Legislation on that  subject, just as Parliament has powers  within the field of the 77 Entry of the Union  list to make legislation among other  matters on the jurisdiction and power of  the Supreme Court.  It is of course plain  that that legislative power which the State  Legislature may exercise under clause (3)  of Article 246 of the Constitution is subject  to clauses (1) and (2) of the said Article  and also two other provisions of the  Constitution as stated in Article 245(1).  It  is for the Legislature of the State to define  the frontier of the powers or jurisdiction  exercisable by its High Court."          67.     In the same judgment, the High Court in regard to  Entry 78 of List I, went on to say that "....the subject  relating to ‘constitution and organization of High Courts’ is  not a subject relating to jurisdiction and powers of the High  Court but subject which has reference only to the  establishment or the constitution of the High Court while  the third Entry of the State List is what authorizes  legislation on such jurisdiction and powers".  

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68.     A Full Bench of the Punjab & Haryana High Court in  Rajinder Singh etc. vs.  Kultar Singh & Ors.  touching  the same topic stated thus:-

"So far as the High Courts are concerned,  the topics of jurisdiction and powers in  general is not separately mentioned in any  of the Entries of the List I but  administration of justice as a distinct topic  finds place in Entry 3 of List II (Now Entry  11-A of the List III).                  The expression ‘administration of  justice’ occurring in Entry 3 of List II of the  VIIth  Schedule has to be construed in its  widest sense so as to give power to the  State Legislature to legislate on all the  matters relating to ‘administration of  justice’.

       After the words ‘administration of  justice’ in Entry 3 there is a semi colon and  this punctuation cannot be discarded as  being inappropriate.  The punctuation has  been put with a definite object of making  this topic as distinct and not having relation  only to the topic that follows thereafter.    Under Entry 78 of List I, the topic of  ‘jurisdiction and powers of the High  Courts’, is not deal with.  Under Entry 3 of  List II the State Legislature can confer  jurisdiction and power or restrict or  withdraw jurisdiction and powers already  conferred on any courts except the  Supreme Court in respect of any statute.   Therefore, the State legislature has the  power to make law with respect to  jurisdiction and powers of the High Court."          69.     In Aswini Kumar Ghosh & Anr. vs. Arabinda Bose  & Anr.  , Mukhkerjea J. in para 57 has observed that  ".........Punctuation is after all a minor element in the  construction of a statute and very little attention is paid to  it by English Courts. ......When a statute is carefully  punctuated and there is doubt about its meaning, a weight  should undoubtedly be given to the punctuation."  

70.     In our view Full Bench of Punjab & Haryana High  Court was right in giving emphasis and meaning to semi  colon in Entry 3 of the List after the words ‘administration  of justice’ in Rajinder Singh (supra).  Semi colon after the  words ‘administration of justice’ in Entry 11-A, in our view,  has significance in dealing with the topic whether  ‘administration of justice’  includes conferring general  jurisdiction on High Court in addition to the subordinate  courts within the State.

71.     A Division Bench of the High Court of Andhra Pradesh  in K.Kumarswamy Kumandan & Bros. vs. Premier  Electric Co.  has proceeded on similar lines observing  thus:-   "The words ‘administration of justice’,  ‘constitution’ and ‘organization of courts’

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have been used in Entry 3 of List II without  any qualification or limitation and they  imply the power and jurisdiction of Courts.  The jurisdiction to entertain suits and to  dispose of them is certainly the branch of  administration of justice.  So it must  necessarily include the power to entertain  the suits or proceedings of a civil or  criminal nature irrespective of the value of  the subject matter.  This power necessarily  implies the authority to enhance, alter,  amend or diminish the jurisdiction of courts  territorially and pecuniarily."           72.     In the light of the various decisions referred to above,  the position is clear that the expression "Administration of  Justice" has wide amplitude covering conferment of general  jurisdiction on all courts including High Court except the  Supreme Court under Entry 11-A of List III.  It may be also  noticed that some of the decisions rendered dealing with  Entry 3 of List II prior to 3.1.1977 touching "Administration  of Justice" support the view that conferment of general  jurisdiction is covered under the topic "Administration of  Justice".  After 3.1.1977 a part of Entry 3 namely  "Administration of Justice" is shifted to List III under Entry  11-A.  This only shows that topic "Administration of Justice"  can now be legislated both by the Union as well as the  State Legislatures. As long as there is no Union Legislation  touching the same topic, and there is no inconsistency  between the Central legislation and State legislation on this  topic, it cannot be said that State Legislature had no  competence to pass 1987 Act and 1986 Act.

73.     It may be added that the State Legislature was also  competent to enact the 1987 Act under Entry 13 read with  Entry 46 of List III.  Entry 13 of List III relates to Civil  Procedure Code.  The jurisdiction of civil court, particularly  pecuniary jurisdiction of civil courts, was specially covered  by the Civil Procedure Code on the date of commencement  of the Constitution.  Entry 46 of List III relates to  jurisdiction and power of all courts except the Supreme  Court i.e. including the city civil court and High Court with  respect to any matter in List III including Civil Procedure  Code in Entry 13.  The contention that merely constituting  and organizing High Courts without conferring jurisdiction  to deal with the matters on them does not serve any  purpose, cannot be accepted.  The Constitution itself has  conferred jurisdiction on High Courts, for instance, under  Articles 226 and 227.  This apart, under various enactments  both of Central and State, certain jurisdiction is conferred  on High Courts.  The High Courts have power and  jurisdiction to deal with such matters as are conferred by  the Constitution and other statutes.  This power of  "Administration of Justice" has been included in the  Concurrent List after 3.1.1977 possibly to enable both  Centre as well as States to confer jurisdiction on High  Courts under various enactments passed by the Centre or  the State to meet the needs of the respective States in  relation to specific subjects.  Thus, viewed from any angle,  it is not possible to agree that the 1987 Act and 1986 Act  are beyond the competence of the State Legislature.

74.     We are, therefore, of the view that there is no merit in  the contention that the State Legislature did not have  competence to enact the two legislations, the

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constitutionality of which has been challenged before us.  

75.     Two other subsidiary contentions urged on behalf of  the appellant in Civil Appeal No. 2452/92 are required to be  examined - (i) in the absence of necessary infrastructure  and the requisite number of judges in the city civil court,  the action of the State Government in issuing notification  dated 20.8.1991 was arbitrary and unreasonable and (ii)  the said notification was issued unfairly due to pressure on  account of agitation by a section of lawyers and for other  extraneous consideration.

76.     Before the High Court, it was contended that the  impugned Act was brought into force by the notification  exercising statutory power unreasonably and arbitrarily in  violation of Articles 14 and 19(1)(g) of the Constitution;  there was no infrastructure in the city civil court to cope  with the additional burden of new civil suits and other  proceedings of civil nature which would be filed on or after  1.5.1992.  In that regard, deficiencies were pointed out as  to the court rooms, required number of Judges and other  infrastructure by giving details.   

77.     In opposition, it was contended that in implementing  the Act, there were bound to be some inevitable problems  having regard to the magnitude of required infrastructure,  court rooms and required number of Judges etc.; such  problems were inevitable; they can be worked out in due  course of time; but, on that ground itself, the impugned  notification need not be struck down.   

78.     The High Court, after consideration opined that the  State Government had taken somewhat hasty step without  application of mind to implement the impugned Act without  providing infrastructure and without meeting other  requirements in relation to appointment of judges as  recommended by the High Court.  The High Court further  observed thus:-

"... The High Court exercises judicial and  administrative control over the subordinate  courts in the State of Maharashtra.  It  would be a matter of concern for the High  Court to see that the litigants in Courts do  not suffer hardship due to want of  adequate infra-structure.  Under the  constitutional scheme, the High Court has  to perform its vital role and duties in  respect of the administration of justice and,  therefore, if infrastructure is not provided  till this date, result would certainly be  violation of fundamental rights of the  litigants under Article 14 and Article  19(1)(g) of the Constitution of India.  We  may usefully refer to the decision of the  Supreme Court in All India Judges  Association vs.  Union of India   in  which the Supreme Court has referred to  the duty of the State to provide  infrastructure which includes residential  accommodation to the judicial officers in  the subordinate judiciary.  The said  judgment refers to this aspect as duty cast  upon the State Government to give suitable  residential accommodation to the Judges."

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79.     Dealing with the contention that a writ could not be  issued to the Government to bring or not to bring the law  into force, relying on the decision in A.K. Roy vs.  Union of  India , the High Court noticed the facts in that case.  That  was a case in which one of the questions considered with  regard to Central Government issuing a notification for  bringing the provisions of Section 3 of the Constitution (44th  Amendment) Act, 1978 into force.  This Court on the facts  of that case observed, "The Parliament having left to the  unfettered judgment of the Central Government the  question as regards the time for bringing the provisions of  the 44th Amendment into force, it is not for the Court to  compel the Government to do that which according to the  mandate of the Parliament lies in its discretion to do when it  considers it opportune to do it".  There, the writ of  mandamus was sought to the Central Government to issue  a notification to bring into force the provisions of Section 3  of the 44th Amendment Act.  In the case on hand the  position is entirely different.  Here is a case pursuant to  statutory provisions the State Government has acted and  issued the Notification dated 20th August, 1991 for  implementation of the provisions of the 1987 Act.

80.     The decision in the case of R.K. Porwal vs. State of  Maharashtra  was cited before the High Court in support  of the impugned notification to contend that it was not  permissible for the High Court under Article 226 of the  Constitution to decide as to whether sufficient and adequate  reasons existed for bringing the law into operation.  That  was a case which related to shifting of market of  agricultural produce from Greater Bombay to New Bombay.   It was in that context this Court observed that since  adequate facilities were provided at New Bombay, no  interference was called for.  Para 15 of the said judgment  reads:- 15.     It was also said that neither the  Gultakdi market not the Turbhe Market had  any convenience or facility or was ready for  use on the date on which it was notified as  the Principal Market for the concerned  market area.  On the material placed  before us we are satisfied that all  reasonable conveniences and facilities are  now available in both the markets,  whatever might have been the situation on  the respective dates of notification.  We  refrain from embarking into an enquiry as  to the situation obtaining on the dates of  notification.  We do say that a place ought  not to be notified as a market unless it is  ready for use as a market with all  reasonable facilities and conveniences but  we do not conceive it to be our duty to  pursue the matter to the extreme limit of  quashing the notification when we find that  all reasonable facilities and conveniences  are now available.  While a notification may  be quashed if nothing has been done  beyond publishing the notification, in cases  where some facilities and conveniences  have been provided but not some others  which are necessary, the Court may  instead of quashing the notification give  appropriate time-bound directions for

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providing necessary facilities and  conveniences.  On the facts of the present  case, we are satisfied that all reasonable  facilities and conveniences are now  provided.  We are also satisfied that the  traders have been making one desperate  attempt after another to avoid moving into  the new markets and they have been  successful in stalling the notification from  becoming effective for quite a number of  years."

(Emphasis supplied)

81.     It is clear from para 15 extracted above that if the  facilities were not to be provided at New Bombay then the  Court could have certainly interfered with and they would  have passed appropriate orders as demanded by the  situation.  Further, in the same paragraph, it is clearly  stated that in cases where some facilities and conveniences  have been provided, but not some others, which are  necessary, the court may, instead of quashing the  notification, give appropriate time-bound directions for  providing necessary facilities and conveniences. The High  Court on facts in the present case found inadequacy in  infrastructure and shortcomings in meeting the requirement  as to court rooms and number of Judges to deal with the  transfer of jurisdiction to city civil court.  In this regard, the  High Court in paras 44 and 45 has stated thus:-

"44.    Mr. Singhvi submitted that the  above observations clearly indicate that it  is not permissible for the High Court under  Article 226 of the Constitution to decide as  to whether sufficient and adequate reasons  existed for bringing the law into operation.   In that case, issue was with regard to  shifting of market of agricultural produce  from Greater Bombay to New Bombay.  It  was in this context that the Supreme Court  observed that since adequate facilities were  provided at New Bombay, no interference  was called for.  However, in para 15 of the  judgment, the Supreme Court has made it  clear that if the said facilities were not to  be provided at New Bombay, then the  Court could have certainly interfered with  and they would have passed appropriate  orders as demanded by the situation.  This  passage has been relied upon heavily by  Mr. Andhyarujina to content that even in  matters of conditional legislation, this Court  can give appropriate directions if facts  before the Court clearly indicate that  adequate infrastructure has not been  provided.

45.     In the present case, we are not  dealing with only case of traders but also  the State Government’s decision to  implement the impugned Act by the  impugned notification in which the High  Court also has to play an important role.   As mentioned hereinabove, we are dealing

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with the topic of administration of justice.   The High Court exercises judicial and  administrative control over subordinate  Courts in the State of Maharashtra and  having regard to the interest of the litigants  in the city of Bombay and having regard to  the fact that there is already an institution  which is working for the last 125 years, it  would not be appropriate to rush through  the implementation of the impugned Act  without providing adequate infrastructure.   It cannot be overlooked that from 1987 till  this day, the State Government has not  implemented the impugned Act and one of  the reasons for non-implementation  appears to us that the State Government  was unable to provide the infrastructure  including appointment of new Judges as  per the recommendation of the High Court.   Having regard to the peculiar  circumstances which are existing in  Bombay, in our opinion, it would not be in  the interest of administration of justice as  also in the interest of litigants or the  institution to rush through in such a haste  and implement the impugned Act by  impugned notification dated 20th August,  1991 from 1st May, 1992."   82.     Looking to what is found by the High Court on facts in  relation to infrastructure, and keeping in view the position  of law as stated in the judgments of this Court  aforementioned, we have no good reason to take a different  view.  In other words, in this regard we concur with the  view expressed by the High Court in deferring the  implementation of the impugned Notification to a future  date and giving liberty to the State Government to apply.   The High Court deferred the implementation of the  impugned Notification till 2.10.1992.   

83.     This Court on 23.9.1992 passed the following order:-

"An affidavit has been filed on behalf of the  State Government to show the infra- structural facilities for the new courts  intended to deal with fresh cases.  In  certain essential aspects, facilities are in  the form of proposals for action.  The  appointment of the requisite minimum  number of judicial officers is also said to be  under process.  Admittedly, there are no  extant facilities for the functional operation  of even the sixteen new courts proposed by  the State Government.  The question of  implementation of the amendments would  arise only after these infra-structural  facilities are completed.  After bringing into  existence the requisite infra-structure, the  State Government is at liberty to file an  affidavit indicating that all the  requirements have been made available  and that at least sixteen courts have  become functional with the appointment  and posting of Presiding Officers,  arrangements of court halls; posting of the

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court staff etc.  The affidavit may be filed  within six weeks from today.  Liberty to  mention.

2.      The 2nd October, 1992 fixed by the High  Court for commencement of the operation  of the amended provisions is in the  circumstances extended till 30th November,  1992.

       Printing of the records is dispensed with.   Additional documents, if any, may be filed  by both sides within four weeks from  today.  Written submissions from both  sides to be filed before 30th November,  1992.  Subject to appellants filing their  written submissions before 30th November  1992, the matter shall be listed for final  hearing on the 9th, 10th and 11th December,  1992 to be heard on day-to-day basis.  It is  expected that the appellants would  complete the submissions on their side in  one and half days and the respondents in  one day and reply in the remaining half a  day.  The schedule of hearing shall be  within this timeframe and the arguments to  be completed within three days so limited."

84.     Again on 27.11.1992, this Court passed the order  which reads:-

"From the report of the High Court and the  omission on the part of the State to place  on affidavit the requisite infrastructure to  be provided, we gather that things are not  very different from where we left matters  on the last occasion.  The matters will now  be listed for final hearing on 27th, 28th and  29th January, 1993.

       Stay to continue till further orders.

       The State shall in the meanwhile  expedite arrangements for providing  requisite infrastructure and report to Court  on affidavit."          85.     The said order is operating till now i.e. for more than  12 years.  During this period, what steps have been taken  by the State Government, what is the existing situation,  and whether all the requirements are satisfied before liberty  can be given to the State Government to implement the  impugned notification, are the matters to be ascertained.   In this view, the implementation of the impugned  Notification is to be deferred.  It is open to the State  Government to apply to this Court seeking permission for  implementation of the said Notification placing on record  necessary material to show that there is adequacy of  infrastructure and the requirements as to number of judges  and court rooms etc. are satisfied.  In this regard a report  from the High Court is also required to be called as and  when the State Government applies to this Court seeking  permission for implementation of the said notification dated  20th August, 1991.  As indicated in paragraph 18 of this  judgment, it is open to the State of Maharashtra to take

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necessary steps to amend Section 3 of the 1986 Act for  providing an appeal.

86.     Merely because an appeal is not provided in any  statute, that by itself does not render a statute  constitutionally invalid.  It is well settled that the right of  appeal is to be provided by a statute.  In other words, right  of appeal is statutory and not a constitutional right.  This  apart, if a statute does not provide an appeal in respect of  certain matter, the party still will have remedy in  approaching the High Court or this Court, as the case may  be, in exercise of power of judicial review including under  Article 136 of the Constitution.  Moreover the difficulty in  the case only relates to a class of cases as indicated in  paragraph 18 of this judgment to such decrees, which may  be passed after the commencement of the 1987 Act and  1986 Act in any suit or other proceedings pending in the  High Court since before the commencement of the said  Acts.  This apart, as stated in paragraph 18, the State of  Maharashtra is willing to take steps to provide an appeal by  amending Section 3 of the 1986 Act.

87.     As regards the other contention that the Notification  has been issued due to pressure brought about by a section  of lawyers and for extraneous considerations, it may be  stated that no particulars were given and no material was  placed on record before the High Court and even before us  except repeating this ground.  We do not find any good  ground to accept this contention advanced on behalf of the  appellant.  Hence, it is rejected. 88.     The argument that the 1986 Act or Adhiniyam  encroaches upon the legislative power of Parliament, cannot  be accepted,  in the view we have taken that it was  competent for the State Legislatures to pass law relating to  general jurisdiction of the High Courts dealing with the topic  ‘administration of justice’ under Entry 11-A of List III.   Assuming that incidentally 1986 Act and the Adhiniyam  touch upon the Letters Patent, the 1986 Act and Adhiniyam  cannot be declared either as unconstitutional or invalid  applying doctrine of pith and substance having due regard  to the discussion already made above while dealing with the  legislative competence of the State in passing the 1987 Act.

89.     Para 35 in Prafulla Kumar Mukherjee & Ors. vs.  Bank of Commerce Ltd., Khulna   reads thus:-

"Moreover, the British Parliament when  enacting the Indian Constitution Act had a  long experience of the working of the  British North America Act and the  Australian Commonwealth Act and must  have known that it is not in practice  possible to ensure that the powers  entrusted to the several legislatures will  never overlap.  As Sir Maurice Gwyer C.J.  said in 1940 F.C. R.188 (supra) at. 201:

"It must inevitably happen from  time to time that legislation  though purporting to deal with a  subject in one list, touches also  upon a subject in another list,  and the different provisions of  the enactment may be so  closely interwined that blind

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adherence to a strictly verbal  interpretation would result in a  large number of statutes being  declared invalid because the  Legislature enacting them may  appear to have legislated in a  fore-bidden sphere.  Hence, the  rule which has been evolved by  the Judicial Committee, whereby  the impugned statute is  examined to ascertain its pith  and substance or its true nature  and character for the purpose of  determining whether it is  legislation with respect to  matters in this list or in that."

90.     In para 37 of the same judgment, it is stated that  "Subjects must still overlap and where they do, the  question must be asked what in pith and substance is the  effect of the enactment of which complaint is made and in  what list is its true nature and character to be found.  If  these questions could not be asked, much beneficent  legislation would be stifled at birth, and many of the  subjects entrusted to Provincial Legislation could never  effectively be dealt with"  

91.     This Court yet in another judgment in                         Bharat Hydro Power Corpn. Ltd. & Ors. Vs.  State of  Assam & Anr. , touching the same question, in para 18  has observed thus:-

"18.    It is likely to happen from time to  time that enactment though purporting to  deal with a subject in one list touches also  on a subject in another list and prima facie  looks as if one legislature is impinging on  the legislative field of another legislature.   This may result in a large number of  statutes being declared unconstitutional  because the legislature enacting law may  appear to have legislated in a field reserved  for the other legislature.  To examine  whether a legislation has impinged on the  field of other legislatures, in fact or in  substance, or is incidental, keeping in view  the true nature of the enactment, the  courts have evolved the doctrine of "pith  and substance" for the purpose of  determining whether it is legislation with  respect to matters in one list or the other.   Where the question for determination is  whether a particular law relates to a  particular subject mentioned in one list or  the other, the courts look into the  substance of the enactment.  Thus, if the  substance of the enactment falls within the  Union List then the incidental  encroachment by the enactment on the  State List would not make it invalid.  This  principle came to be established by the  Privy Council when it determined appeals  from Canada or Australia involving the  question of legislative competence of the  federation or the States in those countries.  

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This doctrine came to be established in  India and derives its genesis from the  approach adopted by the courts including  the Privy Council in dealing with  controversies arising in other federations.   For applying the principle of "pith and  substance" regard is to be had (i) to the  enactment as a whole, (ii) to its main  objects, and (iii) to the scope and effect of  its provisions.  For this see Southern  Pharmaceuticals & Chemicals vs. State of  Kerala  , State of Rajasthan vs. G.  Chawla  , Thakur Amar Singhji vs. State of  Rajasthan , Delhi Cloth and General Mills  Co. Ltd. Vs. Union of India  and Vijay  Kumar Sharma vs. State of Karnataka  .   In the last-mentioned case it was held:  (SCC p. 576, para 15)

"15.    (3) Where a law passed  by the State Legislature while  being substantially within the  scope of the entries in the State  List entrenches upon any of the  entries in the Central List the  constitutionality of the law may  be upheld by invoking the  doctrine of pith and substance if  on an analysis of the provision  of the Act it appears that by and  large the law falls within the  four corners of the State List  and entrenchment, if any, is  purely incidental or  inconsequential."            92.     A Constitution Bench of this Court in Association of  Natural Gas & Ors. Vs. Union of India & Ors.  has  observed that "Entries in the List are themselves not  powers of legislation, but fields of legislation.  An Entry in  one List cannot be interpreted so as to annul or obliterate  another Entry or make another Entry meaningless and that  in case of apparent conflict or any Entry overlapping the  other, every attempt shall be made to harmonise the  same".  Para 15 of the judgment reads:-

"15.    Although Parliament cannot  legislate on any of the entries in the State  List, it may do so incidentally while  essentially dealing with the subject coming  within the purview of the entry in the Union  List.  Conversely, the State Legislature also  while making legislation may incidentally  trench upon the subject covered in the  Union List.  Such incidental encroachment  in either event need not make the  legislation ultra vires the Constitution.  The  doctrine of pith and substance is  sometimes invoked to find out the nature  and content of the legislation.  However,  when there is an irreconcilable conflict  between the two legislations, the Central  legislation shall prevail.  However, every  attempt would be made to reconcile the  conflict."

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93.     In view of the discussion made and reasons recorded  above, we uphold the constitutional validity of 1987 Act,  1986 Act and the Adhiniyam.  The Notification dated  20.8.1991 issued by the State of Mahrashtra shall not be  implemented without further orders from this Court in the  light of what is stated in para 85.   

94.     In the result, Civil Appeal No. 2452 of 1992 is  dismissed subject to above observations as to the  implementation of the impugned notification. Civil Appeal  Nos. 2529 of 1992 and 2530 of 1992 are dismissed in terms  of this judgment.  Transfer Case (C) Nos. 8-11/89 (i.e. Writ  Petition Nos 1953/87 and 1960, 1974 & 2054/87) are  dismissed.  Civil Appeal Nos. 1222-1224 of 1985 are  allowed, the impugned judgment of the Full Bench of the  High Court of Madhya Pradesh is set aside and the writ  petitions stand dismissed.   

No costs.