TMI Blog2005 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior 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 include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sty' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Civil Court. 26. Under Section 4 of the 1948 Act, power was conferred on the Provincial Government to enhance pecuniary jurisdiction not exceeding ₹ 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 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 ₹ 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 excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil court was further enhanced from ₹ 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 ₹ 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 ₹ 25,000/-. The District Courts are having appellate jurisdiction upt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 . Under clause 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 any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ambed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent 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 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 thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 administration of justice and constitution of all courts in a perfectly general manner. No particular subject is specified to which the administration of justice might relate or for which a court might be constituted. It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject .The 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 . 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 jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Panwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity 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 ₹ 5,000/- but not exceeding ₹ 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 ₹ 10,000/- to ₹ 50,000/- and again to ₹ 1,00,000/-. The validity of the Act as well as the amendment of increasing the jurisdiction to ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 contentions, held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 . 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 Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, 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 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 Commonweal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. 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 . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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