TMI Blog1979 (7) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... udge. 2. R.F.A. No. 359 of 1971 (Rajinder Sineh etc. v. Kartar Singh etc.) and R.F.A. No. 67 of 1974 (Punjab Electrical and General Industries (Pvt.) Ltd. v. The State Bank of India) were pending decision in this Court. In view of the amendment made by virtue of Act No. 24 of 1978, both these appeals were to be transferred to the District Judge for disposal. Two applications under S. 151 of the Code of Civil Procedure have been filed in the two appeals respectively, calling in question the vires of the aforesaid two Amendment Acts. These applications came up for hearing before a Division Bench of this Court consisting of brethren D. S. Tewatia and A. S. Bains, JJ. My learned brethren after hearing arguments at great length, referred the matter to be decided by a larger Bench vide order dated Nov. 22, 1978 which reads as under:- In Civil Miscellaneous No 1351 C.I/1978 in R.F.A. No. 359 of 1971, vires of Haryana Act No. 20 of 1977 called the Punjab Courts (Haryana Amendment) Act, 1977 and the Haryana Act No. 24 of 1978 called the Punjab Courts (Haryana Amendment) Act, 1978 have been challenged. Almost at the conclusion of rather a marathon hearing, it transpired that perhaps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to any of the matters in this List. 4. After the 42nd Amendment in the Constitution, there has been a change in item 3 of List II, which reads as under:- 3. Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court. As a result of the aforesaid amendment, there has been an addition of item 11-A in List III (Concurrent List) which is to the following effect:- 11-A. Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts. 5. Reference at this stage may also be made to the entries in the Lists given in the Seventh Schedule to the Government of India Act, 1935, as there has been a substantial departure in the enumeration of the subjects in the different Lists as occurring in the Constitution. The relevant entries of 1935-Act read as under:- List I-Federal Legislative List 53. Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorised by Part IX of this Act, the enlargement of the appellate jurisdiction of the Fed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body of the Constitution. 8. Article 214 provides that there shall be a High Court for each State. AM. 215 lays down that every High Court shall be a court of record and shall have all the powers of such a Court Art. 216 lays down that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Art. 217 lays down the qualifications for appointment and the conditions of service of a High Court Judge. Art. 220 puts restrictions on a Judge practising in High Court over which he has presided. Art.221 provides for the salaries of the Judges. Article 222 deals with transfer of a Judge from one High Court to another. Art. 223 deals with the appointment of acting Chief Justice. Art. 224 deals with the appointment of additional and acting judges. Art. 225 deals with the jurisdiction of existing. High Courts and the same may be reproduced for facility of reference, as some arguments were advanced on the basis of this Article:- 225. subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice have to be read in relation to the Courts which the State Legislature was competent to constitute and organise, and that the impugned Acts were not saved by virtue of entry 65 of List II and entry 46 of List III as these entries empowered the State Legislature to confer special jurisdiction on the Courts. including the High Court, in respect of any particular 'legislative subject mentioned List II, and List III, on which the State Legislature could make law. 12. In support of the argument that any law regulating the jurisdiction of the High Court is a law with respect to its constitution and organisation and, therefore, a law under the field of Union List, reference was made to the pronouncement of the Supreme Court in the State of Bombay v. Narottamdas Jetha Bhai, AIR 1951 SC 89. According to Mr Jain, the decision of the Supreme Court in Narottamdas Jetha Bhai's case makes it indisputable that the words constitution and organisation occurring in 78th entry of the Union List are comprehensive enough to authorise legislation by the Parliament on the jurisdiction exercisable by the High Courts and that any view to the contrary would be going counter to the said j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Patanjali Sastri and Das, JJ., did not accept this distinction between special and general jurisdiction, and held that the power to confer jurisdiction in respect of all matters in this. List. (entry 2 List II) included the power to confer on Courts general jurisdiction with regard to administration of justice in entry 1, List II and any apparent conflict with entry 53 of List I would be resolved by applying the doctrine of pith and substance. 17. In the judgment delivered by Mahajan, J., it was observed that the power to make laws in respect of the constitution and organisation of Courts carried with it the power to confer general jurisdiction on such Courts, for a Court without power and jurisdiction, would be an anomaly. Mukherjea, J., also expressed the same view and observed that constitution of a Court necessarily includes its jurisdiction. 18. Now the Bombay City Civil Courts Act, 1948 was a legislation made before the commencement of the Constitution. The question; therefore; was whether the topic of that legislation was in the Provincial Legislative List or in the Federal Legislative List, which were Lists I and II in the Seventh Schedule to the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation not only on administration of justice but also with regard to constitution and organisation of the High Courts. But now the topic of constitution and organisation of the High Courts has been transferred from the State List to entry 78 of the Union List. Under List I, the perusal of entry 77 would show that it is all comprehensive so as to take in ell topics relating to the Supreme Court. But such is not the position regarding item 78 which deals with the High Court as in that item the topic of jurisdiction and powers does not find a place. Further, the topic of jurisdiction and powers in general of the High Court is not found included in any of the other items of List I. It may be noted that under entry 95 of List I, the jurisdiction and powers of all Courts, including the High Court, is restricted to jurisdiction and powers with regard to any of the matters in List I. Beyond this, it. cannot be said that jurisdiction and powers as a general topic in relation to the High Court is included in List I so as to give Parliament the exclusive powers to legislate on that topic. Further, entry 65 of List II permits legislation with regard to the jurisdiction and powers of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislate on this subject and also on the subject of constitution and organisation of Courts, Parliament conferred on that Legislature an effective power which included within its ambit the law-making power on the subject of jurisdiction of Courts. 25. S.R. Das, J.; who has written a separate judgment has also given a similar meaning to the expression 'Administration of Justice' where there is no separate provision authorising the making of laws with respect to jurisdiction and powers of the Courts 26. From the aforesaid observations, it is evident that the expression 'Administration of Justice' has been construed not in narrow but in its widest sense. That being so, the expression 'Administration of Justice' occurring in entry 3 of List II of the 7th Schedule has also to be construed in its widest sense so as to give power to the State Legislature to legislate on all matters relating to administration of justice. 27. Lot of arguments were advanced by the learned counsel for the applicant to bring home his contention that under the topic 'Administration of Justice', the State Legislature was not competent to invest the High Court with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the meaning given to the word 'organisation' is as follows:- .......the process of forming and arranging into suitable disposition the parts which are to act together in, and in defining the objects, the compound body. If this is the concept of the expression 'constitution and organisation' it cannot be said that jurisdiction and power will automatically flow from 'constitution and organisation'. In entry 78, only the expression 'constitution and organisation' has been used. In case the framers of the Constitution had intended to take away the competency of the State Legislature to legislate with regard to the powers and jurisdiction of the High Courts, then entry 78 would have been worded in similar language as entry 77 which relates to the Supreme Court. The omission of the expression 'jurisdiction end powers' from entry 78 is meaningful. It is beyond my comprehension that the framers of the Constitution were intending to include the topic of 'jurisdiction and powers' in the expression 'constitution and organisation' as occurring in entry 78, especially when the expression 'jurisdiction and powers' had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nisation' of the courts. Once a conclusion is arrived at that 'administration of justice' is a distinct topic, then on the contention of the learned counsel himself the State Legislature would have competency to legislate with regard to jurisdiction and powers of the High Courts also. As is evident from the discussion in the earlier part of the judgment, it has been specifically held by me that 'administration of justice' is a distinct topic. That being so, on the contention of the learned counsel himself, it can straightway be held that under Entry 3 of List II, now Entry 11-A-of List III the State Legislature is competent to legislate with respect to the jurisdiction and powers of the High Court. 31. Mr. Jain placed great reliance on the judgment of the Supreme Court in Narottamdas Jethabhai's case (supra) in support of his contention that the expression 'Constitution and Organisation' carries with it the concept of some general jurisdiction considering that the Courts of Law duly established, cannot function unless some general jurisdiction is conferred on them. I have given a very deep thought to this aspect of the matter and am of the conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Disciplinary Committee of the said Council found him guilty of professional misconduct and ordered his suspension for one year. An appeal filed by the appellant under Section 37 before the Bar Council of India failed. The second appeal under Section 38 also failed. The appellant thereafter filed a writ petition. At the hearing of his writ petition, the appellant contended that Section 38 of the Act was ultra vires Article 138(2) of the Constitution, inasmuch as the appellate jurisdiction conferred on the Court by Section 38 fell under entry 26 in List III and that there being no special agreement between the Government of' India and the Government of any State as required by clause (2) of Article 138, Section 38 was invalidly enacted. On consideration of the entire matter, the learned single Judge who heard the writ petition, did not find any merit in the contention and rejected the same. 33. The appeal under clause X of the Letters Patent filed by the appellant also failed. The appellant thereafter filed an appeal by Special Leave before the Supreme Court where the question which fell for consideration was one of interpretation of entries 77 and 78 of. List I and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; 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 organisation 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 organisation 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 solons 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 organisation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the 1935 AM more or less correspond to entries 77, 78 end 95 in. List 1, entries 3 and 65 in List II and entry 46 in List III of the Seventh Schedule to the Constitution. 34. Reference may also be made to some more observations made in that case while dealing with the scope of the entries 77 and 78 of List I, which to my mind are quite relevant. The observations appear in column 2 at page 892 of the report and read as under:- The only difference between these two entries is that whereas. the jurisdiction and powers of the Supreme Court are dealt with in entry 77, the jurisdiction and powers of the High Courts are dealt with not by entry 78 of List I but by other entries. 35. In my view, the above reproduced observations in general and the observations underlined by me in particular not only negative the contention of Mr. Jain, but also clinch the whole issue so for as it relates to the interpretation of entry 3 of the State List and entries 77 and 78 of List I. The observations underlined by me, in whatever way or context they are read, lead 'only to one conclusion that under entry 78 of List I, the topic of jurisdiction and powers of the High Courts is not de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which shall hereinafter,. be referred to as the 'Amalgamation Order'. However, under clause 7(1) of the Amalgamation Order the new High Court has all such original appellate and other jurisdiction as under the law in force immediately before the appointed day was exercisable in respect of any part of that Province by either of the existing High Courts. C1. 10 of the Letters patent thus continued to govern appeals against the judgment of a single Judge of the High Court. Such appeals were known as Letters Patent Appeals but they were later named as Special Appeals. Special Appeals against the judgment or order of a single Judge made in the exercise of appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the High Court were abolished under Section 3 of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962. Under the Uttar Pradesh High Court (Abolition of Letters Patent Appeals)(Amendment) Ordinance, 1972, promulgated on 30-6-1972, Section 4 was inserted in the Principal Act whereby appeals against the judgment of a single Judge made in the exercise of jurisdiction conferred by Articles 226 and 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olving such constitution and organisation would be governed by the common law, made by Parliament, that if there was no separate entry in respect of the 'Constitution and Organisation of the High Courts ' the entry 'Administration of Justice' would include the constitution arid organisation of High Courts, but where two entries in two different Lists exist side by side, 'Administration of Justice' could not be so interpreted as...to deprive the 'Constitution and Organisation' of the High Courts' of its practical content and that the general jurisdiction of the High Courts fell within the constitution and organisation of the High Courts and was the subject of exclusive Parliamentary Legislation under entry 78 of List I. On merits; the learned Judge held on the facts of the case, that letters Patent Appeal was a part of the constitution and organisation of the High Court and the State legislature had no power to abolish it as part of the High Court's general jurisdiction. It may, however, be observed that the learned Judge left open the question whether the impugned law was a law relating to the general jurisdiction of the High Court-or whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bombay under Section 62(2) of the States Reorganisation Act; stood transferred to the Mysore High Court. During the pendency of the appeal, the legislature of the new State of Mysore made a law intituled the Mysore Civil Courts Act, 1964. Under Section 1(3) of this Act, the State Government made a notification specifying July 1, 1964, as the date of the commencement of the operation o! the Act. Since then the Act was in force The purpose of the new legislation, as stated in its preamble was the enactment of an uniform law relating to the constitution, powers and jurisdiction of the Civil Courts in the State of Mysore, subordinate to the High Court of Mysore. The Act created three cadres of subordinate Judicial Officers in the State, and, those judicial officers were the Munsiffs, the Civil Judges and the District Judges. It next provided for the establishment of the Courts to be presided over by those judicial officers and distributed the work to be disposed of by them. The jurisdiction of each of the courts over which these judicial officers presided also stood regulated. Section 19 which is the relevant section directed that appeals from decrees or orders of a civil natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be power with which it is invested by a law authorised by the Constitution. Then again, that power may consist of special jurisdiction under special laws or general jurisdiction exercisable generally. However that may be, if the core o! 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 a legislation on 'administration of justice' and is therefore what is authorised by the 3rd entry of the State List. If legislation on 'administration of justice' in the High Court is as already explained also within the field of that entry, then Art. 246(3) of the Constitution empowers the State Legislature to make legislation on that subject, just as parliament has power within the field of the 77th 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 Art. 246 of the Constitution is subject to cls. (1) and (2) of that Article and also to the other provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the 1st entry of the Provincial List which referred to the 'constitution and organisation of the High Courts'. If the meaning given to the 1st entry of the provincial List, when that entry incorporated, in addition to the subject concerning the 'administration of the justice', also the topics with respect to the 'constitution and organisation of the High Courts', cannot be of assistance after the entry became divided into two portions, one part of it staying in the 3rd entry of the State List and the other getting into 78th entry of the Union List, it should follow that the subject relating to 'constitution and organisation of', the High Courts' is not a subject relating to jurisdiction and powers of the High Courts but a subject which has reference only to the establishment or the constitution of the High Courts while the 3rd entry of the State List is what authorises legislation on such jurisdiction and powers. That that is the correct view to be taken is clear from the contrast between the 77th and 78th entries of the Union List, The 77th entry which corresponds although to a very small extent to the 53rd entry of the Federal List, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt judicial pronouncements, the learned Chief Justice, who prepared the judgment, observed thus:- Such being the concept of the expression 'constitution and organisation,' 'it cannot be said that jurisdiction and power will automatically follow from constitution and organisation. The difference between these two concepts is also seen to be clearly maintained in the relevant entries in Lists 1, 2 and 3 of the Seventh. Schedule of the Constitution. So far as the High Courts are concerned, the topic of jurisdiction and powers in general is not separately mentioned in any of the entries. But 'Administration of Justice' as a distinct topic finds a place in Entry 3 of List 2, even though this Entry excludes constitution and organisation of the High Court, such constitution and organisation having been assigned exclusively to Parliament as per Entry 78 of List I. Since the topic of 'Administration of Justice' is included in the State List alone. the State Legislature is undoubtedly competent to enact a law to define and regulate the jurisdiction and power of the High Court in the matter of administration of justice. If the expression, 'Administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r territorially or pecuniarily, it would be depriving these expressions of their 'primary content'. It is thus seen that the authority to legislate in regard to administration of justice and constitution and regulation of Courts is vested in the State Legislature. 45. Though a few other judgments' were also cited, but I do not propose to make reference to a11 of them as the above reproduced observations are quite sufficient to bring out the view of some of the High Courts on the interpretation of the entries with which we ere concerned. 46. It was next submitted by the learned counsel that the High Court of Judicature at Lahore was constituted and established by a charter issued by King George V on 21st March, 1919, called the Letters Patent. It conferred first appellate jurisdiction in civil cases from the judgment and decrees passed by the civil Courts in the Provinces of Punjab and Delhi, end specified that civil appellate jurisdiction, as was enjoyed by the Chief Court of Punjab by virtue of any law then in force vide Clause 11 of the Letters Patent, would be enjoyed by the High Court. This position continued till the attainment of independence in the year 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding about the legislative competency of the State Legislature under entry 3 of List II, all the points raised in the aforesaid contention are without any merit. 48. As a result of the 42nd amendment in the Constitution in 1976, the topic of 'administration of justice' was taken out from entry 3 of List II and was placed in entry 1l-A of List III i.e., the Concurrent List. Prior to the 42nd amendment, 'Administration of Justice' was part of entry 3. As would be evident from the referring order, the vires of the Punjab Courts (Amendment) Act, 1963 was also under attack. That is why, notice had to be issued to the Advocate General, Punjab. In the earlier part of the judgment, I have already held that 'Administration of Justice' under entry 3 gives competency to the State Legislature to legislate with respect to the powers. and jurisdiction of the High Court with the result that amendments made in the Punjab Courts Act by the State Legislature prior to the 42nd amendment in the Constitution were validly made and the attack on. the vires of 1963 AM or any other amendment subsequent thereto is not sustainable. 49. Now, after the 42nd amendment, the topi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections 39 and 41 of the Punjab Courts' Act stood incorporated in the Letters Patent, Moreover, if the State Legislature had the legislative competency to make amendments in the Punjab Courts Act, then the question of repugnancy of the State law with the Central law or the reserving of the Bill passed by the State Legislature for the assent of the President does not arise. Further, the Legislature being competent to amend the existing law and the relevant Central Acts themselves envisaging the effecting of changes in the law governing the jurisdiction of the High Court by the competent legislative body, the amendments effected by the Punjab State Legislature in the Punjab Courts Act from time to time cannot be considered impermissible and ultra vires of the provisions of the Constitution of India. 51. The matter may be approached from this angle also. As is evident from the contention of Mr. Jain, under the topic of 'Administration of Justice' the State Legislature has power to invest the Courts in the State with jurisdiction and power for administration of justice. In the instant case, by the impugned legislation the District Judge has been vested with the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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