Delhi High Court
Ms. Geetika Panwar And Delhi High Court ... vs Government Of N.C.T. Of Delhi And Ors. on 23 August, 2002
Equivalent citations: AIR2003DELHI317, AIR 2003 DELHI 317, 2003 A I H C 3198, (2002) 4 RECCIVR 769, (2003) 1 CURLJ(CCR) 675, (2002) 64 DRJ 588, (2002) 99 DLT 840
Bench: Mukundakam Sharma, S.K. Mahajan, Manmohan Sarin, Vikramajit Sen
JUDGMENT Devinder Gupta, J.
1. The Delhi High Court (Amendment) Act, 2001 (Delhi Act No. 5 of 2002) passed by the Legislative Assembly of the National Capital Territory of Delhi on 20.12.2001 further to amend the Delhi High Court Act, 1966 (Act No. 1966) and the Punjab Courts Act, 1918, which received the assent of the President of India on 21.2.2002 and was published in Part II of the Delhi Gazette Extraordinary on 13.3.2002 is under challenge in these two writ petitions on a number of grounds.
2. On 19.4.2002, while issuing rule, considering the nature of the writ petitions and the questions raised therein, the same were referred to a larger Bench in order to have an authoritative decision on the following points:-
(a) Whether the Delhi High Court (Amendment) Act, 2001 (Delhi Act No. 5 of 2002) is ultra vires of the Legislative Assembly of National Capital Territory of Delhi.
(b) In any event whether Section 2 of the Delhi High Court (Amendment) Act, 2001 (Delhi Act No. 5 of 2002) is ultra vires of the Legislative Assembly of the National Capital Territory of Delhi.
3. Learned counsel for the parties made elaborate submissions, including Mr. Soli Sorabji, learned Attorney General, who appeared for Union of India.
4. Delhi High Court Act, 1966 (Act No. 26 of 1966) constituting Delhi High Court was enacted by the Parliament on 5.9.1966. Before Delhi High Court was constituted, a Circuit Bench of the Punjab High Court functioned in Delhi to deal with High Court cases arising in the Union Territory of Delhi. The arrangement was not found to be satisfactory and it was decided to have a separate High Court for Delhi, having regard to the importance of Delhi, its growing population and other considerations. It was also proposed that the New High Court, to be constituted, should have Original Civil Jurisdiction in respect of suits, the value of which exceeds Rs. 25,000/-. Sub-section (2) of Section 5 of the Principal Act thus conferred Original Civil Jurisdiction on the High Court of Delhi in every suit the value of which exceeds Rs. 25,000/-, which reads:-
"Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary civil jurisdiction in every suit the value of which exceeds Rs. 25,000/-."
5. By virtue of Section 16 of the Delhi High Court Act (hereinafter called "the Principal Act") all proceedings, which were pending immediately before the enforcement of the Act in Subordinate Courts in the Union Territory of Delhi, in relation to any civil suit, referred to in Sub-section (2) of Section 5 of the Act, stood transferred to the High Court of Delhi, to be heard and decided by it as if the same have been pending in the High Court.
6. The Principal Act was further amended by three subsequent enactments, passed by the Parliament, thereby raising the pecuniary limit from Rs. 25,000/- to Rs. 50,000/-; Rs. 1,00,000/- and Rs. 5,00,000/- respectively by the Delhi High Court (Amendment) Act, 1969 (Act No. 37 of 1969); Delhi High Court (Amendment) Act, 1980 (Act No. 37 of 1980) and Delhi High Court (Amendment) Act, 1991 (Act No. 66 of 1991).
7. The impugned amendment, now carried out to the parent Act by the Delhi High Court (Amendment) Act, 2001 by the Legislative Assembly of National Capital Territory of Delhi, by which pecuniary limit has further been raised from Rs. 5,00,000/- to Rs. 20,00,000/-, is under challenge, inter alia, on the ground that the Amendment Act is ultra vires; without jurisdiction in as much as the Legislative Assembly of National Capital Territory of Delhi has no legislative competence under the Constitution Scheme to pass the said enactment. The impugned amendment seeks to amend the Act of Parliament, the subject matter of which does not fall in any of the items either under List-II or List-III of the 7th Schedule of the Constitution of India. Delhi Assembly does not have the Legislative competence to make any fresh law or amend any existing law in relation to the jurisdiction and power of the Delhi High Court. Legislative Competence is also under challenge on the ground that Article 239AA(3)(a) of the Constitution confers jurisdiction on the Legislative Assembly of National Capital Territory of Delhi to make laws, which are subject matter of various Entries in List-II and List-III, except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. The term "Administration of Justice" used in Entry 11-A of List-III does not empower the State Legislatures to make any law as regards general jurisdiction and power of the High Courts, since it is specifically excluded there from. Parliament alone is competent to enact any law relating to the general jurisdiction and power of the High Courts. The term "Administration of Justice" in Entry 11-A of List-III has to be read in a manner that the State Legislatures are empowered to make laws relating to the general jurisdiction and power of all Courts other than High Courts and the Supreme Court. Besides these salient grounds, being purely legal in nature, challenge is also on various other grounds, which are not purely legal but are factual. In view of highly disputed question of fact, we proceeded to hear learned counsel for the parties only on the above grounds.
8. In order to appreciate the submissions of learned counsel for the parties, which we will notice shortly, relevant entries of the three lists in the Constitution of India, before and after the Constitution (42nd Amendment) Act, 1976 and as they existed in Government of India Act, 1935, are being quoted.
9. Entry 53 of List-I: Entries 1 and 2 of List-II and Entry 15 of List-III in Government of India Act, 1935 were in the following terms:-
Entry 53 of List-I:
Jurisdiction and powers of all courts, except Federal Court with respect to any of the matters in this List, and to such extent as is expressly authorized on Part IX of this Act, the enlargement of appellate jurisdiction of the Federal Court and the conferring thereon of supplemental powers.
Entry 1 of List-II Administration of justice; constitution and organisation of all Courts, except Federal Court and fees taken therein;...
Entry 2 of List-II Jurisdiction and powers of all courts, except the Federal Court with respect to any of the matters in this List; procedure in Rent and Revenue Courts.
Entry 15 of List-III Jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List."
Entries 77, 78 and 95 of List-I in the Seventh Schedule of the Constitution are as under:-
Entry 77 in List-I Constitution, Organisation, 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.
Entry 78 in List-I Constitution and Organisation (including vacations) of the High Court except provisions as to officers and servants of High Courts; persons entitled to practice before the High Court.
Entry 95 in List-I Jurisdiction and Powers of all Courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction."
Entry 3 of List-II in the Seventh Schedule, prior to the Constitution (42nd Amendment) Act, 1976 was as follows:-
"Administration of Justice, constitution and organisation of all Courts, except Supreme Court and High Courts; Officers and Servants of High Courts; procedure in Rent and Revenue Courts; fees taken in all Courts except Supreme Court."
Entry 65 of List-II reads:-
"Jurisdiction and powers of all courts, except Supreme Court, with respect to any of the matters in this List".
By the Constitution (42nd Amendment) Act, 1976 words "Administration of justice; constitution and organisation of all Courts, except the Supreme Court and the High Courts" appearing in Entry of List II were deleted and a new entry 11-A was inserted in List-III.
Entry 11-A of List-III, as inserted by the Constitution (42nd Amendment) Act, 1976 reads:-
"Administration of Justice; constitution and organisation of all courts, except Supreme Court and the High Court."
Entry 46 of List-III "Jurisdiction and powers of all courts, except the Supreme Court, with respect to any matters in this List."
10. Learned Attorney General urged that there are certain fundamental differences in the structure and wording of the Entries, as they existed in the legislative Lists under the Government of India Act, 1935 and as they exist in the Constitution of India. In the Government of India Act, there was no Entry in the Central List corresponding to Entry 78 of List-I of the Constitution. The exception clause in the Government of India Act in various entries applied exclusively to the Federal Court and not to the High Courts. This is in marked contrast to the Original Entry 3 in List-II and the present Entry 11-A in List-III. Under the Government of India Act, 1935, "Administration of Justice" was solely a Provincial subject. Under the Constitution, by virtue of Entry 11-A the Parliament and the States Legislatures have concurrent jurisdiction and the field of "administration of Justice" does not solely vests in the State. There has been a substantial departure in enumeration of the subjects in the three Lists, as occurring in the Constitution from that which occurred in the Government of India Act, 1935. The Government of India Act, 1935 and the Constitution of India embody three distinct concepts, namely, "Constitution and organisation of courts"; "Jurisdiction and powers of Courts"; and "Administration of Justice". He laid stress that the concept of "Constitution and organisation of Courts" would include in it the "Jurisdiction and Powers" of the Courts for which he made reference to the decision of Supreme Court in The State of Bombay v. Narothamdas Jethabhai and Anr. , particularly to the judgments of Fazal Ali, J.; Patanjali Shastri, J.; Mehar Chand Mahajan, J.; and Mukerjee J. He thus urged that since the concept of "Constitution and Organisation of Courts" would include "jurisdiction and Powers of Courts", by virtue of the exception clause in Entry 11-A of List III the State Legislatures would have no jurisdiction to pass legislation dealing with the jurisdiction and powers of the High Courts. He submitted that even if it is assumed that "jurisdiction and powers of the High Courts" is not covered under the concept of "constitution and organisation of courts" but more appropriately falls within the category of "administration of justice", even so by virtue of the exception clause in Entry 11-A of List III the State Legislatures would not have competence to deal with matters relating to the jurisdiction of the High Courts. Learned Attorney General submitted that the Supreme Court in its decision in Narothamdas's case (supra) had no occasion to deal with the question whether the exception clause applies to jurisdiction and powers of the High Courts. Furthermore, the said decision proceeded on the basis that the legislation in respect of "administration of justice"
of all courts, except the Federal Court, solely vested in the States.
11. Mr. V.P. Singh appearing for the petitioners made reference to various provisions in the Constitution and urged that Delhi is Union Territory and Part VIII of the Constitution deal with Union Territories. Being the Union Territory it has no State Assembly and there is no Parliamentary power for Union Territory. It is the Parliament, which delegates its functions. It is also not a State. By virtue of Article 239AA it is called National Capital Territory of Delhi with limited powers. The High Court for Union Territory of Delhi was constituted under Article 241 of the Constitution whereas constitution and organisation of High Courts is a subject in Entry 78 of List-I and is referable to Article 214 of the Constitution. Article 231 has conferred power on the Parliament to extend jurisdiction of High Court of a State to Union Territory. As such he tried to draw distinction between Article 214 and Article 241 of the Constitution. He urged that under Article 241 read with Entry 78 of List-I Parliament alone has the power to deal with matters relating to jurisdiction and powers of High Courts since "administration of justice" is included in the phrase "constitution and organisation". In other words, phrase "constitution and organisation" includes in it the "administration of justice" and jurisdictional power.
12. Mr. Chandiok also made similar submissions and urged that the two phrases "administration of justice" and "constitution and organisation of Courts" were taken as a single phrase in Narottam Das's case (supra). Even if "administration of justice" is treated as independent and used as such in Entry 11-A, punctuation as used therein would become relevant and by necessary implication the High Courts and the Supreme Court stand excluded. He further urged that the Amendment to the Punjab Courts Act independently cannot stand. There has to be simultaneous amendment in Section 5 of the Delhi High Court, Act. He referred to the reply filed on behalf of National Capital Territory of Delhi that power of State Legislative to carry out amendment is referable to Entry 65 in List-II, which stand of NCT of Delhi is wholly erroneous since the said Entry does not authorize the State Legislature to legislate as regards the general jurisdiction and power of the High Courts.
13. On behalf of the Delhi Bar Association, Mr. Gopal Subramaniam, Senior Advocate, urged that the expression "Administration of Justice" occurring in Entry 11-A is an independent expression and is capable of wide, liberal and expansive meaning. It includes the conferment of jurisdiction, both territorial and in terms of pecuniary limits. The expression "Constitution and Organisation", which occurs in the succeeding words is meant to be a facet of "administration of justice". The expression "except the Supreme Court and High Courts" is meant to reiterate what is stated expressly in Entry 77 and 78 of List-I. The decision of the Supreme Court in Narottam Das's case (supra) is still a good law and is an authoritative pronouncement on the meaning and content of the expression "administration of justice". As a result of the deletion of a part of Entry 3 of List II and to bring about a new entry 11-A in List III, the manifest intention is to render legislative competence of Parliament and the State Legislatures concurrent in respect of an area, which was hitherto a sole preserve of State legislatures. The State Legislatures have exclusive power as a result of the Article 246(3) to make laws for a matter enumerated in List II in the Seventh Schedule. Now, in view of Entry 11-A, both i.e. the Parliament as well as the State legislatures enjoys competence to legislate on the subject. Entry 11-A of List III justifiably confers legislative competence on the State Legislature to enhance the pecuniary jurisdiction of the Civil Courts while simultaneously rendering such a jurisdiction exclusive. As a result of the enactments being referable to Entry 11-A, the same having received Presidential assent would clearly be a law entitled to protection under Article 254(2). The enactments in the present case, invoking the doctrine of pith and substance, are directly referable to Entry 11-A and if there is any encroachment upon the constitution and organisation of the High Courts, the same must be treated as incidental and does not take the law out of Entry 11-A. Mr. Gopal Subramanium further urged that the expression "administration of justice" deals with the general jurisdiction of Divil Law Process and Criminal Justice. While there may be coalescence of meaning of the words constitution, organisation, jurisdiction and powers, the expression "administration of justice" is indeed a wider expression capable of comprehending all these concepts. The amplitude of the expression must be respected, exception so far as specific facets being excluded by Entries 77 and 78 of List I. It was submitted that by permitting both Parliament and State Legislature to enjoy legislative competence under Entry 11-A, the principle of purposive construction stands adequately met. While the internal arrangements like number of Judges designated to hear a matter or a cause would be a part of "administration of justice", the same is not exhaustive of the content of the expression. "Administration of Justice" is wider than simple internal procedures. The conferment of jurisdiction is to clothe the Courts with the powers to do justice and it is only the that the Courts can truly administer justice. The present enactments do not seek to constitute or organise Courts. They do not trespass upon the areas reserved for the Union in List 1. A challenged the competence of the State legislature as an allegedly truncated body is untenable, in view of the equivalence specially prescribed in Article 239AA.
14. Mr. V.K. Shali appearing for the National Capital Territory of Delhi urged that Legislative Competence of the Legislative Assembly of National Capital Territory of Delhi is derived from Article 239AA. He urged that distribution of power was not on scientific basis an then reiterated and took similar line of arguments as taken by Mr. Gopal Subramaniam, Senior Advocate, appearing for the Delhi Bar Association.
15. We have duly considered the submissions made by learned Counsel for the parties. In Part VIII of the Constitution, there is a special provision made with respect to Delhi by Article 239AA, which was inserted by the Constitution (69th Amendment) Act, 1991, which came into force with effect from 1.2.1992. From the date of commencement of Constitution (69th Amendment) Act, 1991 Union Territory of Delhi is called National Capital Territory of Delhi and the Administrator appointed under Article 239 is designated as Lt. Governor. Clause (3) of the said Article says that there shall be a Legislative Assembly for National Capital Territory of Delhi. The power to legislate, conferred on this Legislative Assembly is not at part with that of the State Legislatures but is limited one as stipulated in Clause (3) of Article 239AA, which reads:-
"(3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
(b) Nothing in Sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void.
Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending varying or repealing the law so made by the Legislative Assembly."
16. Bare reading of the aforementioned clause suggest that the Legislative Assembly of National Capital Territory of Delhi has power to make laws for National Capital Territory of Delhi with respect to the matters in List II or in the Concurrent List, except which are in Entries 1, 2 and 18 of List-II and Entries 64, 65 and 66, in so far as they relate to Entries 1, 2 and 18 of the said list. As such it is competent for the Legislative Assembly of NCT of Delhi make any law in respect to all matters in entry 11-A of List II as well. True scope of Entry 11-A in List-III will be examined in subsequent part of this judgment.
17. In Narottam Das's case (supra) the Supreme Court was considering the amendments, carried out to the Bombay City Civil Court Act, 1948, which purported to grant an additional Civil Court for Greater Bombay, having jurisdiction to try and dispose of all suits and other proceedings of civil nature, not exceeding certain value. Provincial Government was authorised under Section 4 of the Act to 3 enhance the limit of jurisdiction. Section 12 of the Act barred jurisdiction of the High Court to try suits cognizable by City Civil Courts. A plaint was presented in High Court of Bombay for recovery of sum of Rs. 11, 704-5-4, alleged to be due on three promissory notes. Question of jurisdiction was referred to a Sitting Judge in Chambers, who held Section 4 of the Act to be ultra vires of the Provincial Legislature held that the High Court had jurisdiction to hear the suit. The matter was referred to a Division Bench, which upheld the decision of Single Judge. Further appeal was filed to Supreme Court.
18. Two questions were canvassed before the Supreme Court: (1) whether the City Civil Court Act is ultra vires the Legislature of the Province of Bombay in so far as it deals with the jurisdiction and powers of the High Court and City Civil Court with respect to matters in List I of Schedule 7, Government of India Act, 1935; and (2) whether Section 4 of the Act is void as it purports to delegate to the Provincial Government legislative authority in the matter of investing the City Civil Court with extended jurisdiction.
19. Entry 53 of Government of India Act, 1935 in List-I conferred upon the Centre power to legislate on the jurisdiction and powers of all Courts, except Federal Court with respect of matters in List-I. Entry 1 of List-II was "Administration of Justice; constitution and organisation of all courts, except Federal Court". Entry 2 of List II conferred on the State Legislature competence to legislate on the jurisdiction and powers of all courts except Federal Court with respect to any of the matters in List-II. In Entry 1 of List II word "jurisdiction and organisation" was not there. It was thus argued on behalf of the respondents in Narottam Das's case (supra) that the promissory notes being central subject, jurisdiction and power of the High Court, in respect of litigation concerning promissory notes would be a central subject. On behalf of the appellants, it was argued that the words "administration of justice" in Entry 1 of List-II were comprehensive enough to clothe the Provincial Legislature with power to make laws, not merely "constituting" a new court but investing such court with general jurisdiction power to receive, try and determine all suits and other proceedings including the suits founded on promissory notes. Needless to add here that under the Government of India Act, 1935 "constitution and organisation of High Courts"
was a State subject, which is not so under the Constitution. Entry 1 in List-II in Government of India Act was "administration of justice; constitution and organisation of all courts, except Federal Court". In the light of this the Supreme Court interpreted various entires. Words "constitution and organisation of all courts" were held to be wide enough to include within it "power and jurisdiction"
and it was observed that there couldn't be a court without power and jurisdiction. According to Justice Mahajan, a Court cannot be constituted so that it will have to look to an outside authority and to another statute passed by such authority, to become effective. The Supreme Court held that the City Civil Court Act of Bombay was not ultra vires but was within the competence of Provincial Legislature of Bombay and that there was proper delegation and Section 4 was valid. Learned Judges gave different reasoning in their Separate judgments.
20. Fazal Ali J. in his judgment read entry 1 in List II as a complete and self contained entry in which no reference was made to the phrase "jurisdiction and powers" of Courts observing:-
"A reference to the three Legislative Lists shows that "administration of justice" is entirely a provincial subject on which only the Provincial Legislature can legislate. The same remark applies to "constitution and organization of all Courts except the Federal Court." The expression "administration of justice" has a wide meaning and includes administration of civil as well as criminal justice, and in my opinion Entry 1 in List II, which I have quoted, is a complete and self-contained entry. In this entry no reference is made to the jurisdiction and powers of Courts, because the expressions "administration of justice" and "
constitution and organization of Courts," which have been used therein without any qualification or limitation, are wide enough to include the owner and jurisdiction of Courts, for how can justice be administered if Courts have no power and jurisdiction to administer, it and how can Courts function without any power or jurisdiction. Once this fact is clearly graphed, it followed that, by virtue of the words used in Entry 1 of List II, the Provincial Legislature can invest the Courts constituted by it with power and jurisdiction to try every cause or matter that can be dealt with by a Court of Civil or Criminal jurisdiction, and that the expression "administration of justice" must necessarily include the power to try suits and proceedings of a civil as well as criminal nature, irrespective of who the parties of the suit or proceedings or what its subject-matter may be. This power must necessarily include the power of defining, enlarging, altering, amending and diminishing the jurisdiction of the Courts and defining their jurisdiction territorially and pecuniary."
21. Mehar Chand Mahajan J. also in his separate judgment, while explaining the general jurisdiction of the courts, in paras 48 & 49 of the report, distinguished it from the special jurisdiction saying:-
It seems to me that the legislative power conferred on the Provincial Legislature by item 1 of List II has been conferred by use of language, which is of the widest amplitude (administration of justice and constitution and organization of all Courts). It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of Courts established for the purpose of administration of justice. Moreover, the words appears to be sufficient to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice in the Province. Legislation on the subject of administration of justice and constitution of Courts of justice would be ineffective and incomplete unless and until the Courts established under it were clothed with the jurisdiction and power to hear and decide causes. It is difficult to visualise a statute dealing with administration of justice and subject of constitution and organization of Courts without a definition of the jurisdiction and powers of those Courts, as without such definition such a statute would be like a body without a soul. To enact it would be an idle formality. By its own force it would not have power to clothe a Court with any power or jurisdiction whatsoever. It would have to look to an outside authority and to another statute to become effective. Such an enactment is, so far as I know, unknown to legislative practice and history. The Parliament by making administration of justice a provincial subject could not be considered to have conferred power of legislation on the Provincial Legislature of an ineffective and useless nature.
Xxxxx It is significant that no other Legislature has been given the power to bring into existence a Court. A Court without powers and jurisdiction would be an anomaly as it would not be able to discharge the function of administration of justice and the statute establishing such a Court could not be said to be a law on the subject of administration of justice. It is a fundamental principle of the construction of a constitution that everything necessary for the exercise of powers is included in the grant of power. Everything necessary for the effective execution of power of legislation must, therefore, be taken to be conferred by the constitution with that power. It may be observed that in exercise of legislative power under item 1 of List II a Provincial Legislature can alter the constitution of the existing Courts, can abolish them, re-organize them and can establish new Courts. If the construction contended for by Mr. Seervai is accepted, then the existing Courts re-established or re-organized by the Provincial Legislature would not be able to function till legislation under item 53 of List I, under item 2 of List II or item 15 of List III also simultaneously was made. I do not think that such a result was in the contemplation of Parliament.
22. Mahajan J., on the general jurisdiction and power of Courts in para 50 of the report observed:-
"The three lists of subjects contained in Schedule 7 have not been drawn up with any scientific precision and the various items in them overlap. The point kept in view in drawing up the lists was to see that all possible power of legislation was included within their ambit. By making administration of justice a provincial subject and by conferring on the Provincial Legislature power to legislate on this subject and also on the subject of constitution and organisation of Court, Parliament conferred on that Legislature an effective power which included within its ambit the law making power on the subjects of jurisdiction of Courts. The Provincial Legislature could, therefore, bring into existence a Court with general jurisdiction to administer justice on all matters coming before it within certain territorial and pecuniary limits, subject of course to the condition that such general,jurisdiction may be expressly or impliedly taken away by the provisions of other laws. The Parliament having divided the field of legislation between the two Legislatures, naturally thought that as a corollary or a necessary consequence of this division of legislative power it was necessary to provide by way of a complementary provision a legislative power specifically on the two Legislatures in respect to the jurisdiction and powers of Courts on subjects which were within their exclusive legislative field. If a Legislature could exclusively legislate in respect to particular subjects, as a necessary consequence it should also have the power to legislate in respect to jurisdiction and power of the Court dealing with that subject. It is this power that has been conferred by Entries 53, 2 and 15 above mentioned on the two Legislatures. Entries 42 and 99 of List I, Entries 37 and 42 of List II and Entries 25 and 36 of List III are of a similar consequential character. The respective Legislatures are, therefore, competent to confer special powers on Courts and can create special jurisdictions acting under those powers in respect to their divided fields of legislation. Instances of conferment of powers and jurisdiction on Courts to hear cases on particular subjects were well known to Parliament. Such powers had been conferred on different Courts in respect of testamentary and intestate jurisdiction, admiralty jurisdiction, under the Indian Companies Act, under the Succession Act, Guardians and Wards Act and under the various Rent Acts and Acts dealing with relief of indebtedness. In view of the division of powers in respect to different subjects, power was given under item 53 of List I, item 2 of List II and item 15 of List III to the different Legislatures when dealing with those subjects also to legislate question of jurisdiction and powers of the Courts. This conferment of legislative power to create special jurisdiction in respect to particular subjects does not in any way curtail the legislative power conferred on the Provincial Legislature under item 1 of List II. As soon as special legislative power under item 53 of List I, under item I of List II and item 15 of List III is exercised, the cause that arise in respect to those subjects would then only be heard in jurisdictions created by those statutes and not in the Courts of general jurisdiction entrusted with the normal administration of justice. In the language of Section 9, Civil P.C., jurisdiction of the general Courts will then become barred by those statutes.
23. Concurring with the view expressed by Mahajan J, in his separate judgment, Mukerjee J also drew distinction between the general jurisdiction and special jurisdiction of the Courts and said:-
"There will be no difficulty in interpreting in a proper manner the different entries in the Legislative Lists referred to above if this distinction between general and special jurisdiction is kept in view. The entire scheme of the Constitution Act of 1935 is to vest the power of establishing Courts upon the Provincial Legislature. The Provincial Legislature can endow the Courts, which it sets up with general jurisdiction to decide all case, which, according to the law of the land, are friable in a Court of law, and all these powers can be exercised under Entry 1 of List II. If the Central Legislature or the Provincial Legislature chooses to confer special jurisdiction on certain Courts in respect to matters enumerated in their appropriate Legislative Lists, they can exercise such powers under the three entries specified above. But the exercise of any such powers by the Central Government would not in any way conflict with the powers exercisable by the Provincial legislature under Entry 1 of List II. The expression "general" must always be understood as being opposed to what is "special" or exclusive. If the Central Legislature vests any particular jurisdiction upon a Court in respect to a Central matter, that matter would cease to be general matter and consequently the Court having general jurisdiction would no longer deal with that, but the general jurisdiction of such Courts would not be affected thereby. The contents of general jurisdiction are always indeterminate and are not susceptible of any specific enumeration. In this view, I do not think that it would be at all necessary to invoke 'the pith and substance' doctrine in avoiding the possibility of incidental encroachment by the Provincial Legislature upon Central subjects in regard to conferring jurisdiction upon Courts. If the expression 'jurisdiction' in Entry 53 of 1st I means and refers to special jurisdiction only, there cannot be even an incidental encroachment upon such special jurisdiction by reason of the conferring of general jurisdiction upon Courts by the Provincial Legislature under Entry 1 of List II. As I have said already what is 'special' or made so, will automatically cease to be in the category of what is 'general' and no question of a conflict would at all arise."
24. The power to "constitute and organise High Courts" on applying the ratio of Narottam Das's case (supra) has to be taken as wide enough to include therein the competence to legislate on the "jurisdiction and power of the High Courts" as well. It is not disputed that by virtue of Entry 78 in List I of the Seventh Schedule of the Constitution, the Parliament alone has competence to legislate on the subject i.e. "Constitution and Organisation of the High Court". In case this power to legislate is construed in the light of the decision in Narottam Das's case (supra) the said entry 78 in List I will include therein the competence of the Parliament alone to legislate on the general "jurisdiction and power" of the High Courts as well. Such a situation cannot be visualised that though the constitution and organisation of High Court is a Central subject and a High Court may be established by an Act of Parliament under entry 78 of List I, for jurisdiction and power it will have to wait for another suitable legislation by a State Legislature or by the Parliament by virtue of entry 11-A of list III.
25. As far as matters relating to Supreme Court, in Entry 77 of List I, in addition to "constitution and organisation", words "administration and powers" has also been used, which are not to be found in Entry 78 of List I. There appears to be valid reasons for that, which can be gathered in case we have a look at Entries 95, 65 and 46 respectively of List-I, List-II and List-III. Entry 95 of List I and entry 65 of List II empowers, the Parliament and the State Legislatures respectively, to legislate on any of the matters and also to confer jurisdiction and power on all courts including High Courts with respect to the matters in the respective lists. Similarly the Parliament and the State legislature shave concurrent competence by Entry 46 of List III to legislate on any of the matters mentioned in List III and also to confer jurisdiction and power on all courts including High Courts with respect to the matters in list III. For example, with respect to the matters, which are in the State List, the State Legislature as per entry 65 of List II can confer powers and jurisdiction on all courts including the High Courts. This competence to legislate and thereby confer jurisdiction and powers on all Courts, including the High Court but excluding the Supreme Court is that jurisdiction and power, which in Narottam Das's case (supra) has been referred to as the Special Jurisdiction.
26. By Entry 77 Parliament alone has competence to pas legislation as regards constitution, organisation, jurisdiction and power of Supreme Court. So far as constitution and organisation of High Courts are concerned, by Entry 78 Parliament alone has competence. In Narottam Das's case (supra) it was held that "If a Legislature could exclusively legislate in respect to particular subjects, as a necessary consequence it should also have the power to legislate in respect to jurisdiction and power of the Court dealing with that subject". In case the phrase "constitution and organisation" are construed in the manner, as interpreted in Narottam Das's case (supra), the Parliament by virtue of the said entry will have the exclusive competence to confer general power and jurisdiction on High Courts. Exercise of original jurisdiction is the general power of the High Court, which the Parliament alone can confer or withdraw.
27. Though in the reply filed on behalf of National Capital Territory of Delhi stand was taken that competence of the Delhi Assembly to pass the impugned legislation is referable to Entry 65 of List-II but such a stand was not taken during the course of arguments and rightly so in view of what has been observed by us that Entry 65 of List-II enables the State Legislatures to confer special power and jurisdiction on all courts including High Court but excluding the Supreme Court with respect to those matters, which are included in List-II. During the course of arguments learned counsel for the respondents submitted that the Legislative Assembly has exercised its powers under Entry 11-A of List III to carry out amendment to the Principal Act thereby legislating on the general jurisdiction and power of the High Court.
28. In Entry 11-A of List III there is a semi colon after the phrase "administration of justice" followed by the phrase "constitution and organisation of all courts". There is also a comma appearing after the phrase "Constitution and Organisation of all Courts" and before the exclusion clause i.e. "except the Supreme Court and the High Courts". Semicolon in Webster's New World Dictionary (Third Edition) has been defined to mean a mark of punctuation indicating a degree of separation greater than that marked by the comma and less than that marked by the period: used chiefly to separate units that contain elements separated by commas, and to separate closely related coordinate clauses. Comma is another mark of punctuation used to indicate slight separation of sentence elements as in setting off nonrestrictive or parenthetical elements, items in a series. Making use of the two punctuation marks, on plain and literal interpretation of Entry 11-A of list III, the Parliament as well as the State Legislatures are competent to enact laws relating to the "administration of justice" as well as "constitution and organisation" of all courts, excluding the Supreme Court and High Courts. It is not permissible under this entry for the State Legislature to enact any law on the subject of "Administration of justice" and/or "constitution and organisation"
relating to the High courts or the Supreme Court. The Delhi Legislative Assembly, as such, has no competence since neither the "administration of justice", nor "constitution and organisation" of High Court is within the competence of the State Legislature.
29. The matter does not rest here. Much emphasis was laid by Mr. Gopal Subramaniam on the use of "semicolon" in Entry 11-A urging that it signifies both a statement of independent generality under "administration of justice" and an illustrative principle in respect of 'constitution and organisation' of Courts. The Entry read as a whole excludes excessive reliance on the exception contained in the Entry. It was urged that there is a semi colon after the phrase "administration of justice" and before the second phrase "constitution of organisation of all courts", which is further separated by comma before the exclusion clause, therefore, the administration of justice has to be treated as an independent expression capable of wide liberal and expansive meaning. In other words, in Entry 11-A, according to the submissions made by Mr. Shali appearing for the National Capital Territory of Delhi and by Mr. Gopal Subramanium, Senior Advocate, on behalf of the Delhi Bar Association, "administration of justice" is a subject in the concurrent list and it pertain to all courts including the High Court. In support of this submission, reliance is placed on the decision of Supreme Court in Narottam Das's case (supra) saying that the said decision still hold good and is an authoritative pronouncement on the meaning and context of expression "administration of justice", which itself is sufficient to clothe the Legislative Assembly the power to legislative on the jurisdiction of all courts including that of High Court. It was urged that constitution and organisation of a High Court is the subject matter of Entry 78 in List-I and constitution and organisation of Supreme Court is subject matter of Entry 77 in List-I. By virtue of Entry 11-A of List III State Legislature are competent to enact laws on the subject of Administration of justice for all Courts which will include High Court, since "semi colon" separates the earlier phrase.
30. On the effect and scope of the semicolon in Entry 11-A, learned Attorney General submitted that punctuation is relevant in some cases but in any event is not controlling. According to him, the Constitutional Scheme is that the High Courts, in respect of their jurisdiction and powers are not to be subject to the vagaries of State Legislations except in the administration relating to the internal domestic and procedural matters. In respect of the others matters, Parliament alone is competent. Therefore, the constitutional scheme would prevail over the punctuation mark; semi colon and the exception clause would apply to the entire Entry 11-A in List III.
31. The terminology appearing in Entry 11-A of List-III has been the subject matter of decisions of High Courts of Kerala, Allahabad and Punjab and Haryana respectively in Kochupennu Kochikka v. Kochikka Kunjipennu and Ors. ; Hakim Singh v. Shiv Sagar (F.B.) and Rajinder Singh etc. v. Kultar Singh and Ors. . In these decisions , the term "administration of justice", as it now appears in Entry 11-A of List-III and prior thereto, as it appeared in entry 3 of List II, was interpreted as if it was separate for the term "constitution and organisation of all courts, except the Supreme Court and High Court". The main basis of the reasoning has been that by use of punctuation "semicolon" after the phrase "administration of justice" the said entry has been separated into two parts, namely, "administration of justice" and "constitution and organisation of all Courts, except the Supreme Court and the High Courts". As such the term "administration of justice" is not controlled by the last phrase. The last phrase is included only with the second phrase "constitution and organisation of all courts".
32. Full Bench of Madhya Pradesh High Curt in Balkrishna Das and Ors. v. Perfect Pottery Co. Ltd. Jabalpur and Ors. had also an occasion to deal with the same issue. It did not agree with the three decisions of Kerala, Allahabad and Punjab and Haryana High Courts and proceeded to give its interpretation. The majority held that the view of Kerala, Allahabad and Punjab and Haryana High Courts on the use of "semi colon" in Entry 11-A is rather too technical a view. It was held that "semi colon" after the phrase "administration of justice" is nothing better than a 'comma' and the entire entry is one complete sentence. The last part "except Supreme Court and High Court" governs both parts of the sentence "administration of justice" and "constitution and organisation of all courts". The conclusion and reasons, as contained in paras 14 to 16 of the report are as follows:-
"It is no doubt true that Kochikka v. Kunjipennu , Hakim Singh v. Shiv Sagar and Rajinder Singh v. Kultar Singh are cases were the terminology appearing in Entry 11-A of List III has been interpreted to mean administration of justice separate from constitution and organisation of all courts except the Supreme Court and the High Courts and the main basis of the reasoning is that by use of punctuation semi colon after 'administration of justice' this entry in the List has been separated into two parts and administration of justice is not controlled by the last phrase 'except Supreme Court and the High Courts' but it appears that a very peculiar situation has not been examined that if administration of justice is not controlled by the last part of this Entry, then the State Legislature could even pas a law about the jurisdiction and powers of the Supreme Court which appears illogical. It is significant that so far as Supreme Court, and the High Courts are concerned, there are clear entries in List I i.e. Entries 77, 78 and 95. What has been provided in Entry 77 about the Supreme Courts has been provided in Entries 78 and 95 about the High Courts. It is therefore, clear that if in phrase 'administration of justice' occurring Entry 11-A empowers the State Legislature to enact about the jurisdiction of the High Court and Supreme Court, then it will run contrary to Entries 77 and 78 in List I. It is, therefore, clear that what has been understood by the use of semi-colon in Entry 11-A is rather too technical a view. In Oxford Advanced Learner's Dictionary of Current English 'semi-colon' has been explained as under:
"1(Formal) Used to separate main clause, to (usually) joined by a conjunction, which are considered so closely connected as to belong to one sentence. The sun was setting now; the shadows were long. He had never been to Russia before; however; it has always been one of his life long ambitions.
2. Used, instead of a comma, to separate from each other, parts of a sentence that are already separated by commas:
There are two facts to consider: first, the weather, second, the expense."
Even reading what is understood by semi colon it appears to be clear that it is nothing better than a comma and in this context if the punctuations in Entry 11-A are examined, after 'administration of justice' semi colon has been used, then after the phrase "constitution and organisation of all courts" comma has been used and thereafter it is stated 'except the Supreme Court and the High Court'. It, therefore, is difficult to understand that this will mean 'administration of justice' as a separate item and the rest as a separate item because even after 'constitution and organisation of all Courts' there is a comma and if what is indicated by the meaning of semi colon or comma as referred to above, then it will mean that 'administration of justice' and 'constitution and organisation of all Courts' are two parts of the sentence and the last part 'except the Supreme Court and the High Courts' controls every thing which has been stated earlier and as discussed above, in our opinion, that only appears to be proper construction of this entry in List III.
The implication of comma after constitution and organisation of all Court's is significant as it is clear that if there would have been no comma after 'constitution and organisation of all courts' then it could be said that this coupled with 'except the Supreme Court and the High Courts' was one complete sentence and as it is clear that comma has been used after the phrase 'constitution and organisation of all Courts' it is clear that by use of this comma the sentence has been split up and the only meaning which could be attributed to the last part 'except the Supreme Court and the High Court will mean that it governs both the parts in the sentence mentioned earlier."
33. Mr. Gopal Subramaniam and Mr. Shali appearing for D.B.A. and N.C.T. Of Delhi tried to give a measure of importance to the punctuation mark "semi colon"
more than it deserve. Punctuation is after all a minor element in the construction of a statute and very little attention is paid to it. In Aswini Kumar Ghose and Anr. v. Arabinda Bose and Anr. the Supreme Court held that punctuation may have its uses in some cases but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text and observed:-
"Punctuation is after all a minor element in the construction of a statute and very little attention is paid to it by English Courts. Cockburn, C.J. said in Stephenson v. Taylor (1861) 1 B. & S.101 "on the Parliament Roll there is no punctuation and we therefore are not bound by that in the printed copies." It seems, however, that in the Vellum copies printed since 1850 there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporanea expositio, see Craise on Statute Law, P.185. When a statute is carefully punctuate and there is doubt about it's meaning, a weight should undoubtedly be given to the punctuation, vide Crawford on Statutory Construction, p.343. I need not deny that punctuation may have its uses in some cases but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text, (ibid). Similarly, although a relative of a qualifying phrase is normally taken with the immediately proceeding term or expression, yet this rule has got to be discarded if it is against common sense and natural meaning of the words and the expression used."
34. In State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. punctuation marks were held not the controlling element and were not allowed to control the plain meaning of a text. It was held:-
"Grammar and punctuation are hapless victims of the pace of life and I prefer in this case not to go merely by the commas used in Clause (c) because, though they seem to me to have been placed both as a matter of convenience, and of meaningfulness, yet a more thoughtful use of commas and other gadgets of punctuation would have helped make the meaning of the clause clear beyond controversy. Besides, how far a clause, which follows upon a comma, governs every clause that precedes the comma is a matter not free from doubt. I therefore consider it more safe and satisfactory to discover the true meaning of Clause (c) by having regard to, the substance of the matter as it, emerges from the object and purpose of the Act, the context in which the expression is used and the consequences necessarily following upon the acceptance of any particular interpretation of the provision, the contravention of which is visited by penal consequences."
35. In case that much importance, as is sought to be given to "semi colon" it would mean that the last phrase "constitution and organisation of all courts, except the Supreme Court and High Courts" is separate from the earlier phrase. The result of putting such an interpretation would be that by virtue of Entry 11-A of List II it would be competent for the State Legislature to legislate on the subject of "administration of justice" not only for the High Court but also for the Supreme Court, which is contrary to the very basic fundamental of the Constitutional Scheme. The reason being that Entries 77 & 78 of List-I admittedly gives exclusive power to the Parliament to legislate on this subject. Supreme Court and High Courts stand expressly excluded from the subject matter of entry 11-A of List III. Having regard to the substance of the matter, as it emerges from the Constitutional Scheme, a plain meaning will have to be given to Entry 11-A of List III and the said Entry will have to be read and interpreted as one complete and comprehensive sentence i.e. "administration of justice and constitution and organisation of all courts except Supreme Court and the High Courts". In other words, the subject matter of Entry 11-A of List III is the "administration of justice"
and "constitution and organisation" of all courts other than Supreme Court and the High Courts.
36. There is yet another reason to come to this conclusion and the manner in which we have read the Entry. Entry 95 of List-I, Entry 65 of List-II and Entry 46 of List-III respectively are on the subject of competence of the respective legislatures to legislate on the special jurisdiction and power, which can be conferred on courts with respect to the matters contained in those lists. By virtue of Entry 95 in List-I, Parliament is competent to legislate on the jurisdiction and powers of all courts including High Courts but excluding Supreme Court with respect to any of the matters included in List-I and on admiralty jurisdiction. Similarly, by virtue of Entry 65 in List II the State Legislatures alone are competent to legislate on the jurisdiction and powers of all courts including the High Courts but excluding the Supreme Court, in respect of the matters, which are included in List-II. Under Entry 46 of List III the Parliament as well as the State Legislatures have concurrent competence to legislate on the "jurisdiction and power" of all Courts including the High Courts but excluding the Supreme Court with respect to the matters, which are included in List-III. The words "jurisdiction and power" is to be found only in Entry 95, 65 and 46 of List-I, List-II and List-III respectively. Such words are not to be found in Entry 78 and Entry 11-A of List-I and List-III respectively. Supreme Court has expressly been excluded from Entry 95, 65 and 46 of List-I, List-II and List-III respectively since jurisdiction and power of the Supreme Court is separately included in Entry 77 of List-I.
37. Entry I in List-II of Government of India Act, 1935 was under
consideration in Narottam Das's case (supra), besides 3 other Entries, namely, Entry 53 in List-I, Entry 2 in List-II and Entry in 15 in List-III. Entries 53, 2 and 15 in List-I, List-II and List-III respectively in Government of India Act, 1935 corresponds to Entries 95, 65 and 46 respectively in List-I, List-II and List-III of the Constitution. High Court was a provincial subject under Government of India Act, 1935 and Entry 1 in List II accordingly was read as a composite Entry, namely, administration of justice and constitution and organisation of all courts including the High Court being a provincial subject obviously all Courts included the High courts. The only exclusion was the Federal Court. It was held in regard to Entry 53 of List-I, Entry 2 of List-II and Entry 15 of List-III that these conferred legislative powers on the respective legislatures to confer special jurisdiction on the established courts with respect to particular subjects occurring in respective lists. Same is the position in the Constitution of the respective legislatures having competence to confer special jurisdiction on the established Courts including the High Courts by virtue of entries 95, 65 and 46 of List I, II and III respectively.
38. In Narottam Das's case (supra) it was also held that a Court without power and jurisdiction would bean anomaly as it would not be able to discharge the functions of administration of justice. It is a fundamental principle of construction of a Constitution that everything necessary for the exercise of powers is included to the grant of power. Everything necessary for the effective execution of power or jurisdiction must, therefore, be taken to be conferred, by the Constitution with the power to constitute and organise a Court. In case the arguments put forth on behalf of the respondents are accepted, the result would be that the Parliament by virtue of powers conferred under Article 241 of the Constitution, having constituted a High Court for a Union Territory and declared to be a Court in such territory to be High Court for all or any of the purpose of the Constitution, would not be able to function till appropriate powers are conferred upon it either by the Parliament or by the Delhi Legislature by enacting law under Item 11-A of List-III. We do not think that such a result was in the contemplation of the Parliament while making the "administration of justice" a subject in the Concurrent List as Entry 11-A, by conferring on the State Legislatures also the power to legislate on the subject and also on the subject of constitution and organisation of all courts. An effective power, which is included within the ambit of entry 11-A of List III, is the law making power on the subject on all courts, except Supreme Court and the High Courts. State Legislatures can, therefore, bring into existence other Courts with general jurisdiction to administer justice on all matters coming before it within certain territorial and pecuniary limits, subject of course to the condition that such general jurisdiction may be expressly or impliedly taken away by the provisions of the other laws.
39. Under the Constitution, there is three-fold distribution of Legislative Powers provided by Article 246 between the Union and the States. List-I is the Union List. It includes those subjects over which the Parliament alone has exclusive power to legislate. On items included in List-II, the State Legislatures alone have jurisdiction to legislate. Concurrent power is conferred on the Parliament and the State Legislatures over items included in List-III. The residuary power belongs to the Parliament. Article 254 deals with inconsistency between the laws made by the Parliament and the laws made by the State Legislature and Clause (3) thereof says that Union Law shall prevail where State Laws is repugnant to it.
40. We, in this case, are concerned with special provision, which has been mae with respect to Delhi under Article 239AA and reliance was placed on behalf of the respondents to the first proviso to Sub-clause (c) of Clause (3) that if any provision of law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly and if such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law made by the Legislative Assembly shall prevail in National Capital Territory. It was urged that since amendments had earlier been carried out to Sub-section (3) of Section 5 of the Delhi High Court Act, 1966 by the Parliament, the impugned legislature made by the Legislative Assembly of National Capital Territory of Delhi, which had ben reserved for the consideration of the President and had also received his assent is to prevail by virtue of first proviso to Sub-clause (c) of Clause (3) of Article 239AA. Learned Attorney General submitted that the Presidential assent cannot cure the basic defect of lack of legislative competence. If the Delhi Legislative Assembly had no legislative competence to pass the impugned legislation, Presidential assent is of no avail. The question of repugnancy can arise only when Parliament and the State Legislature have passed legislation, in respect of one or more entires in the Concurrent List. The Delhi High Curt Act, 1966 was passed by the Parliament, in exercise of its legislative power under Entry 78 of List I of the Seventh Schedule of the Constitution. The said Act was not passed in respect of any entry in the Concurrent List. In fact, Entry 11-A of List III was not in existence when the Parliamentary legislation was passed, therefore, the question of repugnancy does not arise. Field of legislation with regard to constitution and organisation of High Courts was an occupied field by the Parliamentary legislation, namely, the Delhi High Court Act, 1966, therefore; also the Delhi Legislative Assembly had no competence to enact the impugned legislation.
41. In Indu Bhusan Bose v. Rama Sundari Debi it was held that Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List-I, notwithstanding the concurrent power of Parliament and of the State Legislature or the exclusive power of the State Legislature in List III and II respectively. In the said case, it was held that the general power of legislating in respect of relationship between the landlord and tenant, exercisable by a State Legislature either under Entry 18 of List II or Entries 6 and 7 of List-III is subject to the overriding power of the Parliament in respect of matters in List-I so that the effect of Entry 3 of List I is that on the subject of relationship between landlord and tenant, in so far as it arises in respect of house accommodation, situated in cantonment areas, the Parliament alone can legislate and not the State Legislatures. On the same analogy when specific and exclusive power is vested with the Parliament by virtue of Entry 78 to constitute and organise a High Court, it would include within it exclusive legislative powers in respect of the jurisdiction and powers of High Court, established for the purpose of administration of justice.
42. In re The Special Courts Bill, 1978, Special Reference No. 1 of 1978 the Apex Court noticed that Entry 11-A of the Concurrent List relates to "administration of justice"; "constitution and organisation of all courts, except the Supreme Court and the High Courts". The field the legislation covered by Entry 11-A of List III was originally a part of Entry 3 of List II. By Section 57(b)(iii) of the 42nd Amendment Act, 1976, which came into force on January 3, 1977 that part was omitted from Entry 3, List II and by virtue of Clause (c) of Section 57 it was inserted into List III as item 11-A. This transposition of part of entry 3 of List II and insertion of new entry 11-A in List III had led to the argument that the particular amendment introduced by Section 57(b)(iii) and (c) of the 42nd Amendment Act, 1976 is invalid since it destroys the basic feature of the Constitution, as originally enacted,namely, federalism. Such argument was not entertained holding that for conferment of concurrent power on the Parliament in place of the exclusive power of the State Legislatures with respect to the "constitution and organisation of courts other than Supreme Court and the High Court" does not affect the principle of federalism in the form in which Constitution has accepted and adopted it. Constitution and Organisation of High Court is a subject in List I and as such does not confer any authority, power or jurisdiction o the State Legislatures to alter, amend, enlarge or extinguish the general jurisdiction vested in the High Court.
43. Submissions made on behalf of the Respondents, in view of what we have held earlier, has no force since the first provision to Sub-clause (c) of Clause (3) of Article 239AA of the Constitution would apply provided the subject matter falls in any of the matters enumerated in the Concurrent List. Our conclusion is that in so far as the High Courts are concerned, the Parliament, by virtue of Entry 78 in List-I alone is competent to legislate with respect to its powers and general jurisdiction. In so far as Union Territories are concerned, by virtue of Article 241 the Parliament alone has power to constitute a High Court for all or any purposes of the Constitution. This power to constitute a High Court for Union Territory necessarily include the power of defining, enlarging, altering, amending and diminishing the territorial and pecuniary power and jurisdiction including the power to try cases or matters, which can be dealt with by a Court of civil or criminal jurisdiction. As such there is no question of any repugnancy.
44. As a result of the discussion aforementioned, we are of the view that the Legislature Assembly of the National Capital Territory of Delhi was not competent to pass the impugned legislation affecting the pecuniary jurisdiction of the High Court as contained in Section 5(2) of the Delhi High Court Act, 1966 and the consequent amendment made to Section 25 of the Punjab Courts Act, 1918, which has also the effect of limiting the pecuniary jurisdiction of the High Court must fall through with it.
45. Consequently, the first point is answered in the affirmative and it is held that the Delhi High Court (Amendment) Act, 2001 (Delhi Act No. 5 of 2002) in so far as it has amended Sub-section (2) of Section 5 of the Delhi High Court Act, 1966 (26 of 1966) and to the extent Section 25 of the Punjab Courts Act, 1918 has been amended enhancing pecuniary jurisdiction of the District Court from Rs. 5,00,000.00 to Rs. 25,00,000.00 is ultra vires of the Legislative Assembly of National Capital Territory of Delhi.
46. In view of point No. 1 having been answered in the affirmative, the second point is also answered holding Section 2 of the Delhi High Court (amendment), Act, 2001 amending Sub-section (2) of Section 5 of the Delhi High Court Act, 1966 (26 of 1966) and that part of Section 3 of Delhi High Court (Amendment) Act, 2001 by which Section 25 of the Punjab Courts Act, 1918 has been amended as ultra vires, of the Legislative Assembly of National Capital Territory of Delhi.
47. Resultantly the writ petitions are allowed and while declaring Section 2 of the Delhi High Court (amendment), Act, 2001 amending Sub-section (2) of Section 5 of the Delhi High Court Act, 1966 (26 of 1966) and that part of Section 3 of Delhi High Court (Amendment) Act 2001 by which Section 25 of the Punjab Courts Act, 1918 has been amended as ultra vires, of the Legislative Assembly of National Capital Territory of Delhi we make it clear that it will have only prospective effect and will not operate retrospectively. Suits instituted till date and the orders, if any, passed thereon, as a consequence of the impugned amendment, will not become invalid merely by our having declared the impugned legislation as ultra vires but will be deemed to have validly been instituted and the orders, if any, passed thereon will be deemed to have validly been passed. As a result of the prospective operation of our order, all suits, filed in subordinate courts, pursuant to the impugned legislation, shall stand transferred to this court and the same shall be tried, heard and determined, as if the same had been filed in this Court and have been pending in this Court. Parties to bear their respective costs.
Rule accordingly stands discharged.