JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard Sri S.K. Verma, Senior Advocate, assisted by Sri Siddhartha Varma for the appellant, Sri B.K. Narain for respondent No. 1 and learned standing counsel.
2. This special appeal has been filed against the judgment and order dated 26.9.2006 passed by Hon'ble Single Judge dismissing the writ petition. The writ petition was filed by the plaintiff-appellant challenging the order of the appellate Court, District Judge, Badaun in Appeal No. 6 of 2006, dated 30th March, 2006 by which order the appeal filed by the defendant against the trial Court's decree passed in Original Suit No. 75 of 1991 dated 4th February. 2006 was admitted.
3. The Stamp Reporter of the Court has raised objection regarding maintainability of this special appeal. Learned Counsel appearing for the respondents has also supported the objection and contended that this special appeal is not maintainable under Chapter VIII, Rule 5 of the Rules of the Court.
4. Sri. S.K. Varma, when faced with the said objection, contended that the abolition of the letters patent appeals by U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 (hereinafter referred to as the 1962 Act) as amended vide U.P. Act No. 31 of 1975 [The Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1975] itself was beyond the competence of the State Legislature. He submits that the relevant amendments, which is applicable in the present case, was by U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1975, which according to his submission is beyond the legislative competence of the State Legislature. He further contends that the Full Bench judgment of this Court in ;
Hakim Singh v. Shiv Sagar and Ors., upholding the validity of the 1962 Act and the U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972 was not correctly decided. He also contends that a Division Bench judgment of this Court reported in 2003(1) E.S.C. 492;
Vajara Yojna Seed Farm, Kalyanpur and Ors. v. Presiding Officer, Labour Court-II, U.P., Kanpur and Anr. by which judgment the argument that the State enactment, namely, U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 was not ultra vires is also not correctly decided. He submits that Division Bench judgment in M/s Vajara Yojna's case (supra) needs consideration by a Larger Bench and the reference be made accordingly.
5. Learned Counsel appearing for the respondents has submitted that the Full Bench of this Court in Hakim Singh's case (supra) upholding the legislative competence of the State Legislature in passing the 1962 Act has been affirmed by the Apex Court in ;
Hasinuddin Khan and Ors. v. Deputy Director of Consolidation and other. Learhed counsel for the respondents further submits that again in ;
Firdosh Fatima and Ors. v. Firdosh Begum and Ors. the Apex Court approved the Full Bench judgment given in Hakim Singh's case (supra) and held that State Legislature was competent to enact the 1962 Act. He submits that in view of the aforesaid there is no need of referring the matter to the Larger Bench and this special appeal is liable to be dismissed as not maintainable.
6. We have considered the submissions of counsel for the parties and perused the record.
7. Although the judgments of the Apex Court affirming the Full Bench of this Court in Hakim Singh's case (supra), which upheld the validity of the 1962 Act, cover the field but the submission of Sri S.K. Varma, which he has straneously pressed is that before the Full Bench the U.P. High Court (Abolition of Letters Patent Appeal) (Amendment) Act, 1975, which bars the appeal in the present case, was not under consideration and the said enactment was upheld on the ground that the legislation related to the land and tenancy law, therefore, his argument needs consideration and the Full Bench judgment in Hakim Singh's case is not of much importance.
8. Elaborating his submission, Sri Varma contended that constitution and organisation of the High Court is covered by Entry-78 of Union List of 7th Schedule of the Constitution, hence the State Legislature has no jurisdiction to enact the law which can trench on the legislative field reserved for the Parliament. He has also placed reliance on paragraph 138 of the Full Bench judgment of this Court in Hakim Singh's case (supra) and contended that even in the said paragraph the Full Bench has held that State Legislature has no competence to legislate with regard to organisation and constitution of the High Court. He contended that in view of the said paragraph 138 we should hold-'that State Legislature was not competent to amend the 1962 Act by the 1975 Amendment Act. Sri Varma has further placed reliance on the Full Bench judgment in ;
Balkrishna Das and Ors. v. Perfect Pottery Co. Ltd. and Ors.. He states that in paragraph 37 the Full Bench of Madhya Pradesh High Court referred the Full Bench judgment of this Court in Hakim Singh's case (supra). Referring to Hasinuddin's case (supra) Sri Varma contended that three judgments relied by the Apex Court in paragraph 1 of the judgment were not relevant. Sri Varma has also placed reliance on the Full Bench judgment of this Court in ;
Udai Bhan Singh and Ors. v. The Board of Revenue, U.P., Allahabad and others. He has further placed reliance on ; The State of Bombay v. Narottamdas Jethabhai and another The Union of India v. The Mohindra Supply Co. ; Ram Adhar Singh v. Ramroop Singh and Ors. and ;
Vinita M. Khanolkar v. Pragna M. Pai and Ors.
9. Before we proceed to consider the submissions, it is relevant to note the brief history of the Letters Patent appeals in this Court. The letters patent appeals were provided for in the Letters Patent by which High Court of Judicature at Allahabad was created vide Letters Patent dated 17th March, 1866. In paragraph 35 of the Letters Patent it was specifically provided that Letters Patent are subject to the Legislative powers of the Governor General in Legislative Council and also of the Governor General in Council. Subsequently the said Letters Patent was amended and it was made subject to Legislative Power under Section 71 of the Government of India Act, 1915. After enforcement of the Constitution, Article 225 of the Constitution preserved the jurisdiction and power of the existing High Courts. Article 225, however, provided that subject to the provisions of the Constitution and the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in any existing High Court, and the respective powers of the Judges thereof shall be the same as immediately before the commencement of this Constitution. Article 225 of the Constitution is extracted below:
225. Jurisdiction of existing High Courts.- Subject to the provisions of this Constitution and 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 Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof sitting was subject immediately before the commencement of the Constitution shall no longer apply to the exercise of such jurisdiction.
10. Before enforcement of the Constitution the Letters Patent were also affected by the (United Provinces) High Courts (Amalgamation) Order, 1948. Paragraphs 9 and 13 of the said Amalgamation Order provided that the law in force immediately before the appointed day with respect to practice and procedure in the High Court shall be same. Paragraph 17 provided that the Letters Patent of Her Majesty, dated 17th March, 1866 shall cease to have effect to the provisions of this Order. By virtue of Paragraphs 9 and 13 read with Paragraph 17, the Letters Patent appeals Continued to exist even after Amalgamation Order, 1948. As noticed above, after the Constitution by Article 225 the said Letters Patent have been continued. Rules have been framed by this Court, namely, Rules of the Court, 1952 and Chapter VIII, Rule 5 of the Rules of the Court is a provision by which the Letters Patent Appeals now named as special appeal has been retained.
11. Chapter VIII, Rule 5 of the Court is extracted below:
5. Special appeal - An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.
12.The Chapter VIII, Rule 5 of the Rules of the Court has been amended to be in accordance with the U.P. High (Abolition of Letters Patent Appeals) Act, 1962 and the amendments made therein in 1972, 1975 and 1981. According to the amendments made in 1975, the special appeal is barred in respect of the judgment given in exercise of appellate or revisional jurisdiction by the District Judge or the Additional District Judge and on the strength of the provisions of Chapter VIII, Rule 5, the present appeal cannot be maintained.
13. The submission pressed by Sri Varma is that the constitution and organisation of the High Court being covered by Entry-78 of List-1, the 1962 Act as well as the Amendment Act, 1975 were not within the legislative competence of the State Legislature. He submits that High Court's jurisdiction to hear a letters patent appeal cannot be touched by State Legislature. Paragraph 138 of the Full Bench judgment in Hakim Singh's case (supra) has been relied for contending that Full Bench itself laid down in that paragraph that subject matter of special appeals (Letters Patent Appeals) to the same High Court is covered by expression "constitution and organisation" and falls in Entry-78 of the Union List-1. Paragraph 138 of the Full Bench judgment is extracted below:
138. To sum up the subject-matter of Special Appeals (Letters Patent Appeals) to the same High Court against the decision of a Single Judge of the High Court is covered by the expression "constitution and organisation" and falls in Entry 78 of Union List I. This matter does not fall within the competence of the State Legislature. The State Legislature has, however, the power to effectively legislate on matters enumerated in the State List II and with the assent of the President, in Concurrent List III of the Seventh Schedule of the Constitution of India; and for effective legislation, where the pith and substance of the enactment falls within the competence of the State Legislature, it can incidentally trench upon a matter which may otherwise be within the exclusive competence of another legislature. The Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972 and the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Amendment Act, 1972 are, technically speaking on a matter which is within the exclusive competence of the Parliament in that they touch a question of "constitution and organization" of the High Court; but since such a provision was necessary for effective legislation on "Land", it does not amount to colourable piece of legislation. Considering that the pith and substance of the legislation is within the competence of the State Legislature both the Amending Ordinance and the Amending Act are not ultra vires of the State Legislature.
The provisions thereof are not discriminatory and do not violate Article 14 of the Constitution. The Amending Ordinance cannot, even otherwise, be successfully challenged. Both Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972 and Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972 are valid enactments duly enacted by the State Legislature. Therefore, no Special Appeal is maintainable against the order of the Single Judge passed in a proceeding under Article 226 of the Constitution of India, to the extent it is prohibited under these enactments.
14. He has further submitted that the 1975 Amendments being subsequent to Full Bench judgment and the special appeal in the case of the appellant being barred under 1975 Amendment, the said provision was not considered, hence his submission needs consideration especially with regard to 1975 Amendments.
15. Before we proceed further, it is relevant to note the provisions of 1975 Amendments. Section 5 of U.P. Act No. XIV of 1962 was substituted by the said 1975 Amendments. The newly substituted Section 5 is as follows:
5. Abolition of appeals from the judgment or order of one Judge of the High Court made in the exercise of writ jurisdiction in certain other cases.-(1) No appeal, arising from an application or proceeding instituted or commenced, whether prior or subsequent to the commencement of this section, shall lie to the High Court from a judgment or order of one judge of the High Court, made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution, in respect of a judgment or order made or purported to be made in the exercise or purported exercise of appellate or revisory jurisdiction by a District Judge, Additional District Judge, Civil Judge or Additional Civil Judge under any Uttar Pradesh Act (including any Central Act as amended by an Uttar Pradesh Act) anything to the contrary contained in Clause 10 of the Letters Patent of Her Majesty, dated March 17, 1866, read with Clauses 7 and 17 of the U.P. High Courts (Amalgamation) Order, 1948, or in any other law notwithstanding.
(2) Notwithstanding anything contained in Sub-section (1), all appeals pending before the High Court on the date immediately preceding the date of commencement of this section shall be heard and disposed of as if this section had not been enacted.
16. As notice above, the writ petition out of which present special appeal has arisen was filed by the appellant-writ petitioner challenging an order of District Judge passed in Appeal No. 6 of 2006, the appeal was filed against the decree of the trial Court dated 4th February, 2006 in Original Suit No. 75 of 1991. By 1975 Amendment Act the special appeals were barred against a judgment of a learned Single Judge made in exercise of jurisdiction under Articles 226 and 227 in respect of the judgment and order made or purported to be made in exercise or purported exercise of appellate or revisory jurisdiction by a District Judge, Additional District Judge, Civil Judge or Additional Civil Judge under any U.P. Act including any Central Act as amended by U.P. Act.
17. Before appreciating the submissions of Sri Varma, it is relevant to look into the legislative entries in List-1, List- II and List- III, which are material for the purpose of this case. The relevant entries of List-1 are Entries 77, 78 and 95, in List- II the relevant entry is Entry 65 and in List- III the relevant entries are Entries 13 and 46, which are extracted below:
Entries 77, 78 & 95, List-I:
77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons' entitled to practise before the Supreme Court.
78. Constitution and organisation (vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.
95. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction.
Entry 65, List- II:
65. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List.
Entries 13 and 46, List-III:
13. Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.
46. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List.
18. In List-1 the relevant entry for this case is Entry-78 which relates to constitution and organisation of the High Court and Entry 95 relates with regard to jurisdiction and powers of all Court except the Supreme Court with respect to any of the matter in that List and admiralty jurisdiction.
19. In the constitution entries in Lists-I, II and III were more or less retained which were contained in relevant legislative entries of Schedule-7 of the Government of India Act, 1935. The Apex Court had occasion to consider the relevant entries of the Government of India Act in ;
The State of Bombay v. Narottamdas Jethabhai and Anr. legislative competence of State of Provincial Legislature was challenged with regard to jurisdiction of the Court created by State Provincial Legislature. The relevant entries of the Government of India Act were Entry-53 of List-1, Entry-1 and 2 of List-II and Entry-15 of List-3. The relevant portions of the said entries were as follows:
Entry 53, List-1:
Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List....
Entries 1 and 2, List- II:
...the administration of justice, constitution and organisation of all Courts except the Federal Court....
2. Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List....
Entry 15, List-III:
Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List.
20. In the aforesaid case, the Apex Court had occasion to consider the entries containing the words "administration of justice, "constitution and organisation of all Courts" and "jurisdiction and powers of ail Courts". The Apex Court judgment was delivered by Constitution Bench, and the same is material and relevant for considering the submission of the counsel for the appellant in the present case. It is necessary to note the facts of the case and proposition as laid down by the Constitution Bench of the Apex Court.
21. The Bombay City Civil Court Act, 1948 was enacted by Provincial Legislature. Under the said Act Additional Civil Court for Greater Bombay was established and a notification was issued under which the limit of jurisdiction of the Additional Civil Court was extended from Rs. 10,000/- to Rs. 25,000/-. A suit was filed in the High Court for recovery of a sum of Rs. 11,705/- due under a promissory note. The said suit was filed in contravention of the notification dated 20.1.1950 under which the pecuniary limit of Civil Court of was Rs. 25,000/- and which could be heard only by the Civil Court and not by the High Court. The question of ' jurisdiction arose before the High Court. One of the arguments raised before the Bombay High Court was that City Civil Court Act is ultra vires to the legislative power of Province of Bombay since it deals with the jurisdiction and powers of the High Court. The Bombay High Court upheld the Act as intra vires but on another ground of delegation of essential legislative function struck down the notification and upheld the jurisdiction of the High Court. The State of Bombay filed an appeal. All the five Judges of the Apex Court constituting the Bench delivered separate opinion upholding that the State Legislature was fully competent to enact the Act. While deciding the question relevant entries of 7th Schedule of the Government of India Act, 1935 as referred above, were considered. One of the questions, which was considered by the Apex Court, was as to whether when there are two entries in List-1, namely, Entry-1 (the administration of justice, constitution and organisation of all Court except the Federal Court) and Entry- II (jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List), whether Entry-1 is to be interpreted exclusive of jurisdiction of the Court or otherwise. Fazal Ali, J, while considering the aforesaid expressions, laid down following in paragraph 5:
5...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 organisation of Courts," which have been used therein without any qualification or limitation, are wide enough to include the power 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 grasped, it follows 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 original 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 to 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 pecuniarily.
22. In paragraph 6 Entry-2 of List-ll, which is similar to Entry-65 of List-II and Entry-46 of List-III of the 7th Schedule of the Constitution of India was considered by Fazal Ali, Jand it was held that words used jn Entry-2 of List II and Entry-53 of List-1 are wide enough to empower the two Legislatures to legislate negatively as well as affirmatively, with regard to the jurisdiction of the Courts in respect of the matters within their respective legislative ambits. Paragraph 6 of the said judgment is extracted below:
6. The question then arises as to the exact meaning of Entry 2 of List- II and Entry 53 of List I, which are said to militate against the above construction. These entries, in my opinion, confer special powers on Provincial and Central Legislatures, as opposed to the general power conferred on the Provincial Legislature by Entry 1 of List II, the special powers being the logical consequence or concomitant of the power of the two Legislatures to legislate with regard' to the matters included in their respective Legislative Lists. The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are competent also to make provisions in the several Acts enacted by them, concerning the jurisdiction and pov/ers of Courts in regard to the subject- matter of the Acts, because otherwise the legislation may net be quite complete or effective. The v/ords used in Entry 2 of List II and Entry 53 of List I are wide enough to empower the two Legislatures to legislate negatively as well as affirmatively, with regard to the jurisdiction of the Courts in respect of the matters within their respective legislative ambits. In other v/ords, they can exclude or bar the jurisdiction of the Courts in regard to those matters, and they can also confer special jurisdiction on certain Courts.
They can also, apart from the general power which the Courts usually exercise, confer power on the Courts to pass certain special orders, instances of which I shall give later. In this connection, reference may be made to S.9, Civil P.C., which provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
22. Patanjali Sastri, J. interpreting Entry 1 and Entry 2 of List II held that words "administration of justice" and "constitution and organisation of Courts" occurring in Entry 1 must be understood in a restricted sense excluding from their scope "jurisdiction and powers of Courts" dealt with specifically in Entry 2. Following observations were made in paragraph 25 of the said judgment:
...I am, therefore, of opinion that the words "administration of justice" and "constitution and organisation of Courts" occurring in Entry 1 must be understood in a restricted sense excluding from their scope "jurisdiction and powers of Courts" dealt with specifically in Entry 2.
23. Fazal Ali, J further proceeded to hold that although words "administration of justice" and "constitution and organisation of Courts" in Entry 1 does not authorise legislation with respect to jurisdiction and powers of the Courts, the legislative power under Entry-2 in regard to laters topics can be exercised with respect to jurisdiction. He further held that apparent conflict with the Central Legislative power under Entry 53 of List 1 can be resolved in a given case by invoking the doctrine of pith and substance.
24. Mahajan, J. with whom Fazal Ali, J. and Mukherjea, J concurred held that 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. Mahajan, J. further held that the throe lists of subject contained in Schedule 7 has not been drawn up with any scientific precision and the various items in them overlap. The point kept in view of drawing up the lists was to see that all possible power of legislation was included within their ambit. Following was observed in paragraph 51 of the said judgment:
51. I am, therefore, of the opinion that under item 1 of List II the Provincial Legislature has complete competence not only to establish Courts for the administration of justice but to confer on them jurisdiction to hear all causes of a civil nature, and that this power is not curtailed or limited by power of legislation conferred on the two Legislatures under item 53, 2 and 15 of three lists. On the other hand, these three items confer on the respective Legislatures power to legislate when dealing with particular subjects within their exclusive legislative fields to make laws in respect to the jurisdiction and powers of Courts that will be competent to hear causes relating to those subjects; in other words, this is a power of creating special jurisdiction only. This interpretation of the entries in the lists is not only in accordance with the scheme of the statute but it harmonizes the different entries in the lists and does not make any of them nugatory and ineffective. The interpretation contended for by Mr. Seervai would reduce the power of the Provincial Legislature under item 1 to almost nothingness.
25. Mukherjea, J. aiso delivered separate opinion holding that Entry 1 of List II can be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject. He. however, held that three items on the other hand relate to the particular matters appearing in the three lists. Following was observed in paragraphs 68 and 69 of the said judgment:
68...Entry 1 of List II uses the expression "administration of justice and constitution of all Courts" in a perfectly general manner. No particular subject is specified to which the administration of justice might relate or for which a Court might be constituted. It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject. The other three items on the other hand relate to particular matters appearing in the three Lists and what they contemplate is the vesting of jurisdiction in Courts with regard to such specific items only. In one case the jurisdiction is "general" as is implied in the express "administration of justice", while in the other there the jurisdiction is "particular" as limited to particular matters and hence exclusive....
69. 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 cases which, according to the law of the land, are triable 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 a 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 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....
26. S.R. Das, J took the view that Entry 1 of List II clearly indicates that the said entry did not authorise the Provincial Legislature to make any law with respect to jurisdiction and powers of the Court. Following observation was made in paragraph 90 of the said judgment:
90. ...The inclusion of "constitution and organisation of Courts" as a separate item in Entry 1 in List II, the omission of the topic of "jurisdiction and powers of Courts" from Entry 1 and the deliberate distribution of powers to make laws with respect to jurisdiction and powers of Courts with respect to the several matters specified in the three lists clearly indicate to my mind that the intention of Parliament was not, by Entry 1 in List II by itself, to authorise the Provincial Legislature to make any law with respect to the jurisdiction and powers of Courts....
27. From the above quoted views of learned Judges of the Constitution Bench, it is clear that majority of Judges, Fazal Ali, J, Mahajan, J and Mukherjea, J took the view that the words "administration of justice" and "constitution and organisation of Courts" as contained in Entry 1 of List II also contain in it general jurisdiction and power of the Courts whereas the words "jurisdiction and power of the Courts" as mentioned in Entry 2 of List II pertain to jurisdiction and powers of the Court pertaining to the subject matter as contained in List- II. As noticed above, although the administraiion of justice and constitution and organisation of Courts are State subject in Government of India Act, List I, Entry 1 but in the 7th Schedule of the Constitution of India the said is contained in Entry 78 List I. Thus the Constitution Bench laid down that jurisdiction and power of the Court as provided in Entry 2 of List - II of the Government of India Act, which is equivalent to Entry 65 of List- II and Entry 46 of List- III of the Constitution of India confer legislative power to the respective Legislature on the subject contained in respective List- II and List-Ill of jurisdiction and powers of the Court.
28. Sri Varma has much emphasised on 1975 Amendments by which amendment special appeal against a judgment of learned Single Judge in exercise of jurisdiction under Articles 226 and 227 of the Constitution has been taken away arising out of the judgment given by the District Judge, Additional District Judge, Civil Judge or Additional Civil Judge in exercise of appellate or revisional jurisdiction has been barred. The exercise of appellate or revisional jurisdiction in a original suit relates to Code of Civil Procedure and the Code of Civil Procedure is Entry 13 in Concurrent List. Thus on the subject of Civil Procedure Code, i.e., a legislation providing barring of letters patent appeals arising out of original suit, which is governed by Civil Procedure Code is within the competence of the State Legislature. Thus the 1962 Act as well as the Amendment Act, 1975 pertaining to abolition of letters patent appeals in so far as this case is concerned is essentially covered by Entry-13 of List-III and fully within the competence of the State Legislature.
29. In paragraph 138 of the Full Bench judgment in Hakim Singh's case (supra), on which much reliance has been placed by Sri Varma, the Full Bench took the view that the Act 1962 as well as the Amendment Act, 1972 relate to subject matter of land which were within the competence of the State and hence on the doctrine of pith and substance and even if it entrenches on the legislative power of the Parliament, the same is intra vires.
30. It is also relevant to note paragraph 120 of the Full Bench judgment in Hakim Singh's case (supra) where it was held that State Legislature was fully competent on the subject matter of the Code of Civil Procedure and land. Following was held in paragraph 120 of the said judgment:
120. The three entries pertaining to "jurisdiction and powers" (special) make a pointed reference to the matters enumerated in the Lists. Subject- matters of legislation are thus the earlier entries though under the three entries legislation on "jurisdiction and powers" in respect of those subject- matters is contemplated. The three legislations, namely, the Principal Act and the Amending Ordinance and the Amending Act, were, strictly speaking under Entry 48 Concurrent List III and Entry 65 State List II, respectively; but the subject- matter is in the case of the Principal Act "Civil Procedure Code. Entry 13 of List III and in the case of the Amending Ordinance and the Amending Act "Land" Entry No. 18 of List II. Considering that the President had given his assent to the Principal Act, both the subject-matters were within the competence of the State Legislature and it could regulate or restrict the jurisdiction and powers of the High Court in respect of "Civil Procedure Code" and "Land" and for effective legislation to abolish Letters Patent Appeals in these categgry of cases. The source of power of the State Legislature is the subject- matter falling within its competence and not the matter of "Letters Patent Appeal" which falls under "Constitution and organisation" within the exclusive competence of the Parliament. All the three legislations, the Principal Act, the Amending Ordinance and the Amending Act are thus intra vires of the State Legislature.
31. The Apex Court in A.I.R. S.C. 888; O.N. Mahindroo v. Bar Council of Delhi and Ors. had considered the Entries-77, 78 and 95 of List-1, Entry 65 of List-II and Entry-46 of List-III. The Apex Court laid down that while construing entries the Court must assume that the distribution of legislative powers in the three Lists could not have been intended to be in conflict with one another. A general power ought not to be so construed as to make a nullity of a particular power conferred by the same instrument. Following observations were made in paragraph 6 of the said judgment:
(6) It is well recognised rule of construction that the Court while construing entries must assume that the distribution of legislative powers in the three Lists could not have been intended to be in conflict with one another. A general power ought not to be so construed as to make a nullity of a particular power conferred by the same instrument and operating in the same field when by reading the former in a more restricted sense, effect can be given to the latter in its ordinary and natural meaning. It is, therefore, right to consider whether a fair reconciliation cannot be effected by giving to a language of an entry in one List the meaning which, if less wide than it might in other context bear, is yet one that can properly be given to it and equally giving to the language of another entry in another List a meaning which it can properly bear. Where there is a seeming conflict between one entry in one List and another entry in another List, an attempt should always be made to avoid (Sic) to see whether the two entries can be harmonised to avoid such a conflict of jurisdiction. (C.P. and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 in the matter of, 1939 FCR 18 : AIR 1939 FC-1; Citizens Insurance Co. of Canada v. Parsons (1881)7 App Cas 96; Bhola Prasad v. Emperor AIR 1942 FC 17; Governor General in Council v. Province of Madras 72 Ind App 91 : AIR 1945 PC 98 and State of Bombay v. F.N. Balsara 1951 SCR 682 : AIR 1951 SC 318].
32. As noted above, the Constitution Bench of the Apex Court in the State of Bombay's case (supra) had laid down per majority that the entry pertaining to administration of justice and constitution and organisation of the High Court inheres itself apart from organisation and constitution of Courts the power to give general jurisdiction to all Courts without which functioning of Courts is not possible. However, the Constitution Bench laid down that the entry pertaining to power and jurisdiction of the Courts is a special legislative field, which empowers the Legislature to legislate on the subjects in the respective Lists. Thus the fact that in List-1, Entry 78 provides for constitution and organisation of the High Court does not militate against the legislative power of the State Legislature under-Entry 65 of List- II and Entry 46 of List-Ill providing for jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in that list. Thus the State Legislature can provide for jurisdiction and power of the High Court with regard to any of the matters provided for in the respective List. As observed by Fazal Ali, J. in the State of Bombay's case (supra) that the jurisdiction of the State Legislature to provide for jurisdiction and power of the Court can both be exercised negatively and affirmatively, i.e., State Legislature has jurisdiction to take away the jurisdiction already existing. From the foregoing discussions, it is clear that the State Legislature had jurisdiction to abolish the Letters Patent Appeals on the subject enumerated in List-II and List-III and both the 1962 Act and 1975 Amendments were within Legislative competence of the State Legislature.
33. The Full Bench judgment in Hakim Singh's case (supra) has been upheld by the Apex Court in 1996(2) J.T. In paragraph 3 Firdosh Fatima's case (supra) the Apex Court also upheld the legislative competence of the State Lagislature. The Apex Court observed in paragraph 3 that the 1962 Act is under respective legislative entries in State List II of 7th Schedule of the Constitution relating to jurisdiction and powers of all Courts of the State of Uttar Pradesh. Paragraphs 2 and 3 of the said judgment are extracted below:
2. By operation of this enactment, the power to entertain Letters Patent appeal under Clause (10) of the Letters Patent dated 17.3.1866 read with Clause (17) of U.P High Courts (Amalgamation) Order, 1948, in respect of the enumerated subject mentioned therein stands taken away. The controversy is no longer res integra. This Court in Hasinuddin Khan v. Deputy Director of Consolidation by a Constitution Bench has already upheld the validity of the Act, following the ratio of this Court in State of Bombay v. Narothamdas Jethabhai, Ram Adhar Singh v. Ramroop Singh and Union of India v. Mohindra Supply Co. As a fact, this Court has upheld the validity of Section 3 of 1962 Act in Mohindra Supply Co. case. It was held thus: (SCC p. 286, para 1).
The challenge to these Acts on the ground of their unconstitutionality is, therefore, rejected.
3. In view of the decision of the Constitution Bench, the controversy no longer survives. The legislative competence in abolishing Letters Patent appeals in respect of revenue and 'tenancy matters is covered under Section 4 of the said Act. They are under respective legislative entries in State List II in Vllth Schedule to the Constitution relating to jurisdiction and powers of all courts of administration of justice in the State of Uttar Pradesh with respect to the matters in List II. Therefore, the Act stands upheld.
34. One more submission of Sri Varma, which needs attention, is that the special appeal is nothing but exercise of jurisdiction under Article 226 of the Constitution by the High Court hence any restriction on it is taking away jurisdiction of High Court under Article 226 and 227 of the constitution of India. Reliance has been placed by Sri Varma on paragraph 9 of the Full Bench judgment in Udal Bhan Singh's case (supra) where the Full Bench observed as under:
...Similarly, when a special appeal is filed challenging an order passed in a writ petition, it is the writ petition which is pending in a court of appeal and not the suit or proceeding which gave rise to it.
35. The abolition of special appeal specifically mentioned under the 1962 Act and the amendments in no manner affects the Jurisdiction of this Court under Article 226. The letters patent appeal, as noticed above (Clause 35 of the Letters Patent itself) and as per Article 225 of the Constitution of India is subject to appropriate legislation by the competent legislature. The abolition of special appeal cannot, thus, be said to affecting the writ jurisdiction of the High Court under Article 226 of the Constitution.
36. The Full Bench of Madhya Pradesh High Court relied by Sri Varma in Balkrishna's case (supra) does not help the appellant in the present case. By the Madhya Pradesh Legislation, Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhlnlya, 1981 was a legislation which did away the filing of the letters patent appeals. The Act was a composit Act, which took away all the special appeals whether covered by Lists-1, II or III. The present is not a case where the special appeals on the subject matters contained in List-1 have been taken away. It is relevant to note that under Chapter VIII, Rule 5 of the Rules of the Court the special appeals have been taken away with regard to exercise of jurisdiction under Article 226 of the Constitution with respect to any of the matters enumerated in a Uttar Pradesh Act or any Central Act enumerated in the State List or the Concurrent List. Thus the said judgment does not help the appellant in the present case.
37. Sri Varma has submitted that the judgments relied by the Apex Court in paragraph 1 of the Hasinuddin Khan's case (supra) [(1980)3 S.C.C. 285] for holding that the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 is not unconstitutional, were not relevant. As noticed above, the judgment of the Apex Court in State of Bombay's case (supra) is relevant and pertinent for the issues raised with regard to legislative competence of the 1962 Act and the said submission of Sri Varma cannot be accepted. The judgment in Union of India v. The Mohindra Supply Co. (supra) was a case where the Apex Court considered the question of maintainability of the Letters Patent Appeal against a judgment of Single Judge under Section 39(1) of the Arbitration Act, 1940. It is not necessary to look into at to which part of the judgment was referred by the Apex Court in paragraph 1 of the Hasinuddin Khan's case (supra).
38. The judgment of the Apex Court in Ram Adhar Singh's case (supra) was considering the question of abatement of all pending matters under Section 5 of the U.P. Consolidation of Holdings Act, 1953. The said provision had no affect on the jurisdiction of the Supreme Court in pending appeals. The above case has no relevance in the present case.
39. The judgment of the Apex Court relied by counsel for the appellant in Vinita's case (supra) was a case where bar under Section 6(3) of the Specific Relief Act, 1963 was held to not affect letters patent appeals before the Division Bench. In the Specific Relief Act there was no express exclusion of the Letters Patent Appeals, hence the Apex Court held that appeal was not barred. Following was held in paragraph 3 of the said judgment-r-
3. Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory" enactment concerned expressly excludes appeals under letters patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned Counsel for the respondents that if Clause 15 of the Letters Patent is invoked then the order would be appealable. Consequently, in our view, on the clear language of Clause 15 of the Letters Patent which is applicable to Bombay High Court, the said appeal was maintainable as the order under appeal was passed by learned Single Judge of the High Court exercising original jurisdiction of the court. Only on that short ground the appeal is required to be allowed.
40. Even in above quoted paragraph the Apex Court held that jurisdiction of the High Court would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent. As noticed above, the jurisdiction of the High Court according to Article 225 of the Constitution is subject to legislation by appropriate legislature. The above Apex Court judgment was not a case where the competence of legislature was under scrutiny to exclude letters patent appeal. The said judgment does not help the appellant in any manner.
41. From the above, we do not find any substance in any of the submissions raised by Sri Varma. The Full Bench judgment in Hakim Singh's case (supra) needs no reconsideration. The 1962 Act and the 1975 Amendments, which bar special appeal in the present case is fully within the competence of the State Legislature. The Division Bench judgment in Vajara Yojna's case (supra) (in which one of us Justice Ashok Bhushan) was a member has repelled the similar arguments challenging the competence of the State Legislature to enact the 1962 Act. Following observations were made in that judgment while repelling the similar submission in paragraph 49:
49. The second limb of submission of counsel for the appellant was to the effect that the UttarPradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981 is ultra vires. the counsel for the respondents has rightly pointed out that there being no prayer in the special appeal for declaring the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981 as ultra vires and there is no challenge to provisions of Chapter VIII, Rule 5 of the Rules of the Court in this special appeal, the appellant is not entitled to raise this question at the time of hearing. In any view of the matter the question of vires of the U.P. High court (Abolition of Letters Patent Appeals) Act, 1962, as we//as Amendment Act No. 32 of 1972 has already been upheld by Full Bench of this Court in Hakin Singh's case (supra) and by the Apex Court in Firdosh Fatima's case (supra). There is no scope for any argument regarding challenge to vires of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981. The constitution Bench of this Courtin Hasinuddin Khan and Ors. v. Deputy Director of Consolidation and Ors. had upheld the validity of the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 as well as Amendment Act 33 of 1972. The relevant constitutional entries pertaining to state legislature regarding abolition of special appeals in the High Court has been considered by the Full Bench of our Court in Hakim Singh's case (supra). The ratio laid down by the Aoex Court in Smt. Firdosh Fatima's case (supra) as well as Hasinuddin Khan's case (supra) is fully attracted on the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1981 and there is no substance in arguments raised by Sri Srivastava regarding vires of the aforesaid Amendment Act. It is to be noted that in Smt. Firdosh Fatima's case (supra) the Apex Court upheld the validity of the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 as well as Amendment Act 33 of 1972....
42. The submission of Sri Varma that the Division Bench judgment in Vajara Yojna's case (supra) needs reconsideration by a Larger Bench, thus, cannot be accepted.
43. In view of the foregoing discussions, the present special appeal having arisen from a judgment of learned Single Judge given in exercise of writ jurisdiction under Article 226/227 of the Constitution arising from a judgment of learned District Judge in his appellate jurisdiction is clearly barred under Chapter VIII, Rule 5 of the Rules of the Court and is thus dismissed as not maintainable.