Research › Browse › Judgment

Allahabad High Court · body

1973 DIGILAW 191 (ALL)

Hakim Singh v. Shiv Sagar

1973-04-13

A.K.KIRTY, D.S.MATHUR, GOPINATH

body1973
Judgement MATHUR, J. :- Special Appeal No. 499 of 1972 is by Hakim Singh, petitioner, against the order of the learned Single Judge of this Court dismissing, his Writ Petition No. 3306 of 1970, wherein the judgments and decrees of the Board of Revenue and the Additional Commissioner in a revenue suit under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act were challenged. This appeal was preferred even though under the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972, (U. P. Ordinance No. 12 of 1972) (hereinafter referred to as the Amending Ordinance), later replaced by the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972, (hereinafter referred to as the "Amending Act") such an appeal was not maintainable. In the Special Appeal the petitioner has challenged the constitutionality of the Amending Ordinance and the Amending Act. At the time of the hearing of the Special Appeal, at the stage of admission the Bench referred the above question, i.e. maintanability of the Special Appeal to a larger Bench which has now come up for hearing before this Full Bench. The validity of the Amending Ordinance and the Amending Act is also challenged in Special Appeal No. 455 of 1972 arising out of an order passed by the authorities under the U. P. Consolidation of Holdings Act. On an application made this Special Appeal was ordered to be listed for hearing along with the other Special Appeal. 2. The constitutionality of the Amending Ordinance and the Amending Act has been challenged on two grounds : firstly, that the provisions thereof are ultra vires and beyond the competence of the State Legislature ; and secondly, that they are violative of Article 14 of the Constitution of India. In this connection it is also contended that the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962, (U. P. Act No. XIV of 1962) (hereinafter referred to as the "Principal Act") was also beyond the competence of the State Legislature and was hit by Article 14 of the Constitution and, therefore, an Act amending an invalid enactment can have no legal effect. 3. 3. Under clause 10 of the Letters Patent dated the 17th of March, 1866, establishing the High Court of Judicature at Allahabad an appeal lay to the same High Court from the judgment of a Single Judge other than a judgment in second appeal, civil revision or in exercise of the criminal jurisdiction. An appeal from the judgment of a Single Judge passed in second appeal was maintainable only where the Judge who passed the judgment declared that the case was a fit one for appeal. On the amalgamation of the High Court at Allahabad and the Chief Court in Oudh and the Constitution of one High Court by the name of the High Court of Judicature at Allahabad (referred to in the U. P. High Courts (Amalgamation) Order, 1948 as the "new High Court"), the Letters Patent ceased to have effect except for the purpose of construing or giving effect to the provisions of the above Order, which shall, hereinafter, be referred to as the "Amalgamation Order". However, under clause 7 (1) of the Amalgamation Order the new High Court has all such original appellate and other jurisdiction as. under the law in force immediately before the appointed day was exercisable in respect of any part of that Province by either of the existing High Courts, Clause 10 of the Letters Patent thus continued to govern appeals against the judgment of a Single Judge of the High Court. Such appeals were known as Letters Patent Appeals, but they were later named as Special Appeals. 4. Special Appeals against the judgment or order of a Single Judge made in the exercise of appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the High Court were abolished under Section 3 of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962. 4. Special Appeals against the judgment or order of a Single Judge made in the exercise of appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the High Court were abolished under Section 3 of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962. Under the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972, promulgated on 30-06-1972, Section 4 was inserted in the Principal Act whereby appeals against the judgment of a Single Judge made in the exercise of jurisdiction conferred by Articles 226 and 227 of the Constitution, in respect of a judgment, decree or order, made or purported to be made by the Board of Revenue under the United Provinces Land Revenue Act, 1901, or the U. P. Tenancy Act, 1939 or the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or by the Director of Consolidation (including any other officer purporting to exercise the powers and to perform the duties of Director of Consolidation) under the U. P. Consolidation of Holdings Act, 1953, were abolished. The Amending Ordinance was replaced by the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972 incorporating similar Section 4, which came into effect on 16-8-1972. The Amendment Bill was introduced in the Uttar Pradesh Legislative Assembly on July 19, 1972 and was published in the Gazette Extraordinary of July 21, 1972. Special Appeal No. 455 of 1972 was presented on July 3, 1972, the re-opening day after the High Court Vacation and Special Appeal No. 459 of 1972 on July 29,1972. In both the Single Judge judgment was pronounced in the month of April 1972 before the High Court Vacation. 5. From the above it shall appear that the Principal Act has abolished Special Appeals against the judgment of a Single Judge in second appeal, governed toy Section 100 of the Code of Civil Procedure and also in first appeals while the Amending Ordinance and the Amending Act in proceedings under Articles 226 and 227 of the Constitution arising out of the orders of the Board of Revenue and the Director of Consolidation under the enactments detailed above. The Principal Act thus applies to a matter falling in concurrent List III of the Seventh Schedule of the Constitution, while the Amending Ordinance and the Amending Act to a power exercisable under Article 226 or 227 of the Constitution. The contention of the learned Advocate General is that even though Special Appeal arises out of a proceeding under Article 226 or 227 of the Constitution, it relates to a mater falling in State List II of the Seventh Schedule. This view is naturally challenged by the appellants in both the Special Appeals. 6. Controversy as to the validity of the Principal Act. namely, the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962 (U. P. Act No. XIV of 1962) passed by the State Legislature and assented to by the President can no longer exist in view of the Supreme Court decision in Union of India v. Mohindra Supply Co., AIR 1962 SC 256 . Arbitration Act, 1940 (Act No. X of 1940) was passed by the Federal Legislature and received the assent of the Governor-General on March 11, 1940. The legislative powers were then governed by the Government of India Act, 1935, Section 39 of the Arbitration Act so enacted was as below :- 39. (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from, original decrees of the Court passing the order :- An order- (i) superseding an arbitration ; (ii) on an award stated in the form of a special case ; (iii) modifying or correcting an award ; (iv) filing or refusing to file an arbitration agreement ; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement ; (vi) setting aside or refusing to set aside an award : Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to His Majesty in Council." Under the Adaptation of Laws Order, 1950 issued under the Constitution of India, the words "His Majesty in Council" were substituted by "the Supreme Court". 7. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to His Majesty in Council." Under the Adaptation of Laws Order, 1950 issued under the Constitution of India, the words "His Majesty in Council" were substituted by "the Supreme Court". 7. At the time of the enactment of the Arbitration Act, 1940, the subject "arbitration" was included in Concurrent Legislative List III, Part I at Item No. 11; but "administration of justice and constitution and organization of all courts, except the Federal Court" lay in the Provincial Legislative List II, and were included in Item No. 1 thereofThe "constitution and organization" of the High Court was then within the exclusive competence of the Provincial Legislature ; and the Federal Legislature had no power to enact a law on the subject of "constitution and organization" of the High Court. The Central Legislature could, however make a law on the subject of arbitration. A question arose whether a Letters Patent Appeal against the judgment of a Single Judge of the High Court was maintainable or the provisions of sub-section (2) of Section 39 of the Arbitration Act were a bar to the entertainment by the High Court of an appeal against the order of a Single Judge. Whether Letters Patent Appeal fell within the expression "constitution and organization" or within "administration of justice" the matter was one within the exclusive competence of the Provincial Legislature, though by virtue of Items 11 and 15 of the Concurrent Legislative List III, the Federal Legislature could enact a law relating to arbitration. In Radhakrishnamurthy v. V. A. Y. Ethirajulu Chetty and Co. ILR (1945) Mad 564 : ( AIR 1945 Mad 184 ) the Letters Patent Appeal was held not to be maintainable. This view was expressed on the basis of clause 44 of the Letters Patent of the Madras High Court. The question was, however, considered in AIR 1962 SC 256 from other angles, holding that no Letters Patent Appeal was maintainable. 8. In State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 a petition under Article 226, of the Constitution was not regarded as a proceeding under the U. P. Agricultural Income-tax Act, nor a continuation of such a proceeding. 8. In State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 a petition under Article 226, of the Constitution was not regarded as a proceeding under the U. P. Agricultural Income-tax Act, nor a continuation of such a proceeding. Similarly in Ramesh v. Gendalal Motilal AIR 1966 SC 1445 a petition ,to the High Court invoking the jurisdiction under Article 226 of the Constitution was treated as a proceeding quite independent of the original controversy. When a petition under Article 226 or 227 of the Constitution is not, and cannot be deemed to be, in continuation of a proceeding under the enactment and is to be treated as a distinct proceeding before the High Court, in exercise of an extraordinary or special original jurisdiction, the rule laid down for proceedings under an enactment in the cases cited above, under the Arbitration Act cannot automatically be made applicable to proceedings under Article 226 or 227. It will, therefore be proper to consider the questions involved from the fundamental principles while expressing an opinion on the validity of the Amending Ordinance and the Amending Act as passed by the State Legislature. 9. The three Lists contained in the Seventh Schedule of the Constitution differ from the corresponding Lists of the Government of India Act, 1935 in certain respects. For easy reference and comparison the material entries of both are being reproduced hereinbelow :- CONSTITUTION OF INDIA GOVERNMENT OF INDIA ACT, 1935 List I - Union List. List I - Federal Legislative List. 77. Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court)......... 53.......The enlargement of the appellate jurisdiction of the Federal Court and the conferring thereon of supplemental powers. 78. Constitution and organization (including vacations) of the High Courts......... . . . . . . . . .. . . . .. . . . .. . . . . 79. Extension of the jurisdiction of a High Court to and exclusion of the jurisdiction of a High Court from, any Union territory. . . . . . . . . .. . . . .. . . . .. . . . . 96. Jurisdiction and powers of all courts, except the Supreme Court with respect to any of the matters in this List.......... 53. . . . . . . . . .. . . . .. . . . .. . . . . 96. Jurisdiction and powers of all courts, except the Supreme Court with respect to any of the matters in this List.......... 53. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorised by Part IX of this Act......... 97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists. . . . . . . . . .. . . . .. . . . .. . . . . List II - State List. List II - Provincial Legislative List. 3. Administration of justice; constitution and organization of all courts except the Supreme Court and the High Courts;......... 1.......The administration of justice ; constitution and organization of all courts except the Federal Court...... 65. Jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in this List. 2. Jurisdiction and powers of all courts except the Federal Court, with respect to the matters in this List ; Procedure in Rent and Revenue Courts. List III - Concurrent List. List III - Concurrent Legislative List Part I. 13. Civil Procedure including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration. 4. Civil Procedure including the law of limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act. 46. Jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters in this List. 11. Arbitration. 15. Jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List. 10. A few important changes were introduced in the three Lists of the Constitution of India. "Constitution and Organization of the High Court" was shifted from the Provincial Legislative List to the Union List and a residuary provision, Entry 97 List I of the Seventh Schedule was incorporated in the Union List. Under Section 104 (1) of the Government of India Act, 1935. "Constitution and Organization of the High Court" was shifted from the Provincial Legislative List to the Union List and a residuary provision, Entry 97 List I of the Seventh Schedule was incorporated in the Union List. Under Section 104 (1) of the Government of India Act, 1935. the Governor-General could with respect to such matters empower either the Federal Legislature or a Provincial Legislature to enact a law. 11. In respect of the jurisdiction and powers of Courts three expressions have been used, both in the Constitution of India and the Government of India Act, 1935. They are : "Administration of justice". "Constitution and organization" and "Jurisdiction and powers with respect to any of the matters in this List". These expressions were considered in The State of Bombay v. Narottamdas Jethabhai, AIR 1951 SC 69 . The majority view expressed therein has been summarized in O. N. Mohindroo v. Bar Council of Delhi, AIR 1968 SC 888 . The 1951 case has been interpreted by the High Courts at occasions differently. We, therefore, propose to first of all reproduce hereinbelow the view as summarised in the 1968 Supreme Court case and then to make a reference to the observations in the 1951 case which suggest that the expression "constitution and organization" includes a part of "general jurisdiction" also. 12. In AIR 1968 SC 888 their Lordships, first of all laid down the scheme of conferring jurisdiction and powers on Courts and thereafter observed with respect to AIR 1951 SC 69 as below : "That these entries contemplate such a scheme was brought out in 1951 SCR 51 : ( AIR 1951 SC 69 ) where it was contended that the Bombay City Civil Court Act, 40 of 1948 constituting the said Civil Court as an additional court was ultra vires the Provincial Legislature as it conferred jurisdiction on the new court not only in respect of matters in List II of the Seventh Schedule of the Government of India Act, 1935. but also in regard to matters in List I such as promissory notes in Item 8 of List I. Rejecting the contention it was held that the impugned Act was a law with respect to a matter enumerated in List II and was not ultra vires as the power of the Provincial Legislature to make laws with respect to "administration of justice" and "constitution and organization of all courts" under Item 1 of List II was wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Provincial Legislature ; that the object of Item 53 of List I, Item 2 of List II and Item 15 of List III was to confer such powers on the Central and the Provincial Legislatures to make laws relating to the jurisdiction of courts with respect to the particular matters that are referred to in Lists I and II respectively and the Concurrent List, and that these provisions did not in any way curtail the power of the Provincial Legislature under Item 1 of List II to make laws with regard to jurisdiction of Courts and to confer jurisdiction on Courts established by it to try all causes of a civil nature subject to the power of the Central and Provincial Legislatures to make special provisions relating to particular subjects referred to in the Lists. It may be mentioned that Item 53 in List I, Items 1 and 2 in List II and Item 15 in List III in the Seventh Schedule to the 1935 ,Act more or less correspond to Entries 77, 78 and 95 in List I. Entries 3 and 65 in List II and Entry 48 in List III of the Seventh Schedule to the Constitution." Observations in the 1968 case with respect to the scheme of conferring jurisdiction and powers on Courts are as below :- "The scheme for conferring jurisdiction and powers on courts is (a) to avoid duplication of Courts, Federal and State Courts as in the Constitution of the United States, (b) to enable Parliament and the State Legislatures to confer jurisdiction on courts in respect of matters in their respective lists except in the case of the Supreme Court where the legislative authority to confer jurisdiction and powers is exclusively vested in Parliament. In the case of the Concurrent List both the legislatures can confer jurisdiction and powers on courts except of course the Supreme Court depending upon whether the Act is enacted by one or the other. Entry 3 in List II confers legislative powers on the States in the matter of "Administration of Justice;" constitution and organization of all courts except the Supreme Court and the High Courts; Officers and servants of the High Court; procedure in rent and revenue court; fees taken in all courts except the Supreme Court". It is clear that except for the constitution and the organization of the Supreme Courts and the High Courts the legislative power in the matter of administration of justice has been vested in the State Legislatures. The State Legislatures can therefore, enact laws, providing for the constitution and organization of courts except the Supreme Court and the High Courts and confer jurisdiction and powers on them in all matters civil and criminal except the admiralty jurisdiction. It would of course be open to Parliament to bar the jurisdiction of any such court by special enactment in matters provided in Lists I and III where it has made a law but so long as that is not done the courts established by the State Legislatures would have jurisdiction to try all suits and proceedings relating even to matters in Lists I and III. Thus, so far as the constitution and organization of the Supreme Court and the High Courts are concerned the power is with Parliament. As regards the other courts Entry 3 of List II confers such a power on the State Legislatures. As regard jurisdiction and powers, it is Parliament which can deal with the jurisdiction and powers of the Supreme Court and the admiralty jurisdiction. Parliament can confer jurisdiction and powers on all courts in matters set out in List I and List III where it has passed any laws. But under the power given to it under Entry 3 in List II, a State Legislature can confer jurisdiction and powers on any of the courts except the Supreme Court in respect of any Statute whether enacted by it or by Parliament except where a Central Act dealing with matters in Lists I and III otherwise provides." 13. But under the power given to it under Entry 3 in List II, a State Legislature can confer jurisdiction and powers on any of the courts except the Supreme Court in respect of any Statute whether enacted by it or by Parliament except where a Central Act dealing with matters in Lists I and III otherwise provides." 13. On the basis of the observations underlined by us, the learned Advocate-General has urged that under Entry 3 the State Legislature can confer jurisdiction and powers, or restrict or withdraw the jurisdictions and powers already conferred, on any of the courts except the Supreme Court, in respect of any Statute and, therefore the State Legislature has the power to make a law in respect of Letters Patent Appeals governed by clause 10 of the Letters Patent. No observation can be read in isolation. At an earlier stage their Lordships made it clear that except for "constitution and organization of the Supreme Court and the High Court" the State Legislature can enact laws providing for the constitution and organization of other courts and "confer jurisdiction and powers on them in all matters, civil and criminal except the admiralty jurisdiction." It was also made clear that even though the State Legislature can confer jurisdiction enabling the Courts to try all suits and proceedings relating even to matters in Lists I and III, the Parliament had the Power to create additional Courts or to bar the jurisdiction of Courts established by the State Legislature in respect of matters falling in Lists I and III. The observations relied upon by the learned Advocate-General must be construed in this light. Therefore, the State Legislature can enact laws providing for the constitution and organization of courts except the Supreme Court and the High Courts and confer jurisdiction and powers (general) on them in all the matters (other than admiralty jurisdiction), whether falling in Lists II and III or in List I, and also confer jurisdiction and powers (special) on any of the courts except the Supreme Court with respect to any of the matters falling in List II and with the assent of the President with respect of matters in List III. Exercise of jurisdiction and powers (special) with respect to matters falling in Lists I and III shall, however, be subject to the provisions of the Constitution and in accordance with the laws enacted by the Parliament Consequently, if the Parliament creates special Courts or places restriction in the exercise of jurisdiction the Courts established by the State Legislature shall cease to exercise jurisdiction or exercise restricted jurisdiction with respect to matters enumerated in List I and List III, if necessary. 14. The learned Advocate-General also placed reliance upon the following observations made in connection with Entries 77 and 78 of List I and contended that the words "but by other entries." must have reference to the expression "administration of justice" included in Entry 3 of the List II : "The only difference between these two entries is that whereas the jurisdiction and powers of the Supreme Court are dealt with in Entry 77 the jurisdiction and powers of the High Courts are dealt with not by Entry 78 of List I but by other entries." Entries 95 of List I, 65 of List II and 46 of List III pertain to jurisdiction and powers of all the courts, except the Supreme Court with respect to matters enumerated in those Lists. This is more or less special jurisdiction and powers of all courts except the Supreme Court. When these entries do not relate to the special jurisdiction and powers of the Supreme Court, it was necessary to include this matter in List I which was done by enlarging Entry 77 of List I, and including therein jurisdiction and powers of the Supreme Court. The general jurisdiction of the High Courts can fall in two categories : "constitution and organization" or "administration of justice". To the extent "constitution and organization" must include a part of general jurisdiction and powers, it shall not be covered by "administration of justice" and, therefore, to this extent the legislative competence shall be with the Parliament though in other respects, pertaining to general jurisdiction and powers the State Legislature can enact a law under the head "administration of justice". To the extent "constitution and organization" must include a part of general jurisdiction and powers, it shall not be covered by "administration of justice" and, therefore, to this extent the legislative competence shall be with the Parliament though in other respects, pertaining to general jurisdiction and powers the State Legislature can enact a law under the head "administration of justice". In other words, the jurisdiction and powers of the Supreme Court will fall in Entry 77 of List I, but for the High Courts we shall have to look elsewhere, that is, for special jurisdiction under the three Entries referred to above and for general jurisdiction under Entry 3 of List II, namely, "administration of justice", except to the extent the general jurisdiction must go with "constitution and organization." 15. There should not be any controversy as to the meaning and scope of Entry 95 of List I, Entry 65 of List II and Entry 46 of List III which correspond with Entry 53 of List I, Entry 2 of List II and Entry 15 of List III of the Seventh Schedule of the Government of India Act, 1935. According to the majority decision in AIR 1951 SC 69 and the law laid down in AIR 1968 SC 888 , these entries relate to special jurisdiction and powers of all the courts except the Supreme Court conferred by the Parliament or the State Legislature. They are special provisions relating to particular subjects referred to in the Lists. In pursuance of these provisions the State Legislature can enlarge, reduce or rescind the jurisdiction and powers generally conferred on the Courts of law including the High Court, or create special Courts or Tribunals, and the Parliament can, similarly create special Courts or restrict, enlarge, or rescind the general jurisdiction, of such Courts. The three entries can, therefore be said to relate "to special" jurisdiction and powers of all the Courts except the Supreme Court, including the High Courts established under the Constitution and constituted and organised by the Parliament in accordance with the Constitution. Any legislation in this respect shall be by a competent legislature, that is by the Parliament with respect to the matters enumerated in Lists I and III, and the State Legislature with respect to the matters in List II and with the assent of the President to matters in List III. 16. Any legislation in this respect shall be by a competent legislature, that is by the Parliament with respect to the matters enumerated in Lists I and III, and the State Legislature with respect to the matters in List II and with the assent of the President to matters in List III. 16. It is in respect of the other two entries "administration of justice" and "constitution and organisation" that there exists a conflict. Certain observations made in AIR 1951 SC 69 made it clear that "constitution and organization" carries with it the concept of some general jurisdiction considering that the Courts of law duly established cannot function unless some general jurisdiction is conferred on them. It is true that the Entries of the Seventh Schedule of the Government of India Act, 1935 were being considered in this case, but Fazl Ali, J. observed as below :- "The expression "administration of justice" has a wide meaning and includes administration of civil as well as criminal justice, and in my opinion Entry I 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 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 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 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." 17. 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." 17. Similarly, Patanjali Sastri, J. observed at page 78, column 1 : "The grading of the Courts too in their heirarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject-matter which they are empowered to deal with. It is reasonable to presume that this system of organisation of Courts in British India was known to the framers of the Government of India Act, 1935, and it cannot be readily supposed that they wanted to introduce a radical change by which the power of constituting Courts and providing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be conferred by piecemeal legislation by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legislative fields which are ' by no means capable of clear demarcation.………………………………………………………………… ……………………………………………… ………………………………………………………………………… I am convinced that both the language of the provisions and the antecedent legislative practice support the conclusion that the Provincial Legislatures which have the exclusive power of constituting and organising Courts and of providing for the administration of justice in their respective provices, have also the power of investing the Courts with general jurisdiction." 18. Mahajan, J. quoted with approval the view expressed by the Chief Justice of Bombay in Mulchand Kundanmal v. Raman Hiralal, (AIR 1949 Bom 197) as below : "......... It is difficult to imagine how a Court can be constituted without any jurisdiction and if Parliament has made the administration of justice exclusively a Provincial subject and conferred exclusively upon the Provincial Legislature the power to constitute and organize all Courts it must follow, that the power is given to the Provincial Legislature to confer the ordinary civil jurisdiction upon the Courts to carry on with their work........." and thereafter observed as below :- "Moreover, the words appear to be sufficient to confer upon the Provincial Lesislature 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 end 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.... ..... ..... ..... ..... ..... The argument logically analysed, comes to this : that such a statute will contain the name of the Court, the number of its Judges, the method of their appointment the salaries to be drawn by them and it will then stop short at that stage and will not include any provision defining the powers of the tribunal or its other jurisdiction and that the Court so constituted could acquire jurisdiction only when a law was made relating to its jurisdiction and powers by the Federal Legislature under Entry 53 of List I, by the Provincial Legislature under Entry 2 of List II and by either Legislature under Entry 15 of List III......... Such a construction of the Act would not only do violence to the plain language of Item I of List II but would be contrary to its scheme under which administration of justice was made a provincial subject. 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 exclusion of power of legislation must, therefore, be taken to be conferred by the constitution with that power......... 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 exclusion of power of legislation must, therefore, be taken to be conferred by the constitution with that power......... 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. I am, therefore, of the opinion that under Item 1 of List II of 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 Items 53, 2 and 15 of the three lists." 19. The observations of Mukherjea, J. on this point are as below :- "......... In interpreting this provision of the Constitution it has been held in North America that words "constitution maintenance and organization of Courts" plainly include the power to define the jurisdiction of such Courts territorially as well as in other respects : Re County Courts of British Columbia, 21 SCR 446, Mr. Seervai argues that this might be the normal meaning of the words if they stood alone......The word "Court" certainly means a place where justice is judicially administered. The appointment of Judges and officers or the mere setting apart of a place where the Judges are to meet, are not sufficient to constitute a Court. A Court cannot administer justice unless it is vested with jurisdiction to decide cases and "the constitution of a Court necessarily includes its jurisdiction" vide Clements Canadian Constitution. Edn. 3, p. 527......... 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. Edn. 3, p. 527......... 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 expression "administration of justice", while in the other three the jurisdiction is "particular" as limited to particular matters and hence exclusive." 20. The minority view expressed by Das, J. need not be reproduced in this judgment. 21. It is true that Entry 1 of List II of the Government of India Act, 1935 was construed in the above case and the entry included "administration of justice" and "constitution and organization of all courts other than Federal Court" but stress was always laid upon the fact that a Court constituted without conferment of general jurisdiction would be futile and it shall not be able to discharge its juridical functions unless the legislature conferred jurisdiction by a separate enactment. Stress was also laid upon the fact that the establishment of a Court carried with it the concept of not only determining the place of sitting and the appointment of Judges, but what jurisdiction such Court can generally exercise, in other words, the pecuniary and territorial jurisdiction of such Court was to be specified while constituting such Court. In this view of the matter, "constitution and organization" must include a part of "general jurisdiction" not covered by the three entries pertaining to "special jurisdiction and powers." 22. We may now consider this question from the fundamental principles what the scope of each entry is when considered individually. The effect of over-lapping entries existing in different Lists within the legislative powers of different legislatures shall be considered later. 23. None of the Entries in the lists is to be read in a narrow and restricted sense, and the widest possible construction, according to the ordinary meaning must be put upon the words used therein. The effect of over-lapping entries existing in different Lists within the legislative powers of different legislatures shall be considered later. 23. None of the Entries in the lists is to be read in a narrow and restricted sense, and the widest possible construction, according to the ordinary meaning must be put upon the words used therein. The words of the Entry must be read in their ordinary, natural and grammatical meaning ; and most liberal construction should be put upon the words so that the same may have effect in their widest amplitude Navinchandra Mafatlal, Bombay v. Commr. of Income-tax. Bombay City, AIR 1955 SC 58 ; Hans Muller of Nurenburg v. Supdt, Presidency Jail, Calcutta, AIR 1955 SC 367 ; Rustom Cavasjee Cooper v. Union of India. AIR 1970 SC 564 and British Coal Corporation v. The King, AIR 1935 PC 158). They are not to be construed in a narrow and pedantic manner, ( AIR 1955 SC 58 ; United Provinces v. Mt. Atica Begum, AIR 1941 FC 16 and Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 ). Each general word extends to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it (AIR 1941 FC 16). Each particular entry relates to a separate subject or group of cognate subjects, each subject or group of subjects being independent of the others subject only to incidental overlapping ( AIR 1951 SC 69 ). However ; there can be a legislation by combining two entries in the same List or in different Lists provided that the legislature has the power to enact a law on both the subjects (L. Jagannath v. Authorised Officer, Land Reforms, Madurai, AIR 1972 SC 425 and Union of India v. Harbhajan Singh, AIR 1972 SC 1061 ). 24. The expression "administration of justice", can be interpreted in both a narrow and wider sense. The narrow meaning flows from the dictionary meaning of the expression. Justice is administered in a case after its institution till the pronouncement of judgment and execution of the decree, judgment or order. In the wider sense the expression shall include all the aspect connected with the administration of justice. The narrow meaning flows from the dictionary meaning of the expression. Justice is administered in a case after its institution till the pronouncement of judgment and execution of the decree, judgment or order. In the wider sense the expression shall include all the aspect connected with the administration of justice. Salmond on Jurisprudence, Twelfth Edition, pages 104 and 105, sums up this question as below :- "Hitherto we have confined our attention to the administration of justice in the narrowest and most proper sense of the term. In this sense it means as we have seen the application by the State of the sanction of physical force to the rules of justice. It is the forcible defence of rights and suppression of wrongs. The administration of justice properly so called therefore involves in every case two parties the plaintiff and the defendant, a right claimed or a wrong complained of by the former as against the latter a judgment in favour of the one or the other and execution of this judgment by the power of the State if need be. We have now to notice that the administration of justice in a wider sense includes all the functions of courts of justice, whether they conform to the foregoing type or not. It is to administer justice in the strict sense that the tribunals of the State are established, and it is by reference to this essential purpose that they must be defined. But when once established, they are found to be useful instruments by virtue of their constitution, procedure, authority or special knowledge, for the fulfilment of other more or less analogous functions. To these secondary and non-essential activities of the courts, no less than to their primary and essential functions, the term administration of justice has been extended. They are miscellaneous and indeterminate in character and number, and tend to increase with the advancing complexity of modern civilization." 25. The wider scope of the expression also appears from Clement's Canadian Constitution. Third Edition, page 539 : "......... justice should be administered throughout Canada in the main through the medium of Courts constituted, maintained and organized under provincial legislation......... No serious question has been raised as to the right of a provincial legislature to formulate a complete scheme for the administration of justice in the province............. Third Edition, page 539 : "......... justice should be administered throughout Canada in the main through the medium of Courts constituted, maintained and organized under provincial legislation......... No serious question has been raised as to the right of a provincial legislature to formulate a complete scheme for the administration of justice in the province............. The right of appeal, thus created, is in no sense an alteration of the right or rights concerning which litigation has arisen ; It, is an alteration of a right connected with the administration of justice." 26. In re S. M. Nathaniel, AIR 1949 Mad 481, the wider scope of the expression "administration of justice" was recognized, but it was observed that the expression used in Entry 1 of List II of the Seventh Schedule of the Government of India Act should not be construed in that wide sense. In the wider sense "administration of justice" can include even establishment of Courts, provisions for institution and trial of suits, provisions for appeals and revisions, and rules of procedure and practice of Courts in civil and criminal proceedings including execution in civil and punishment in criminal matters. In AIR 1935 PC 158 system of appeals was recognized as a most essential part of the administration of justice. 27. The question of giving a restricted scope to an expression arises only when overlapping entries exist in Lists within the legislative field of two different legislatures. Such a question shall be considered by us later. For the present it can be said that if the expressions "constitution and organization" and "jurisdiction and powers" did not find place in the three Lists, "administration of justice" had to be understood in a very wide sense and would include the establishment of courts, jurisdiction thereof and the trial of suits, appeals and revisions and also the execution in civil matters and punishment in criminal cases. Broadly speaking the expression would, in such circumstances, include all matters connected with the administration of justice in accordance with the law enacted by the legislature, failing which on principles of equity, fair play and good conscience, to put it differently would include "constitution and organization" of court "jurisdiction and powers", both general and special, of such courts and the trial of suits and execution of decree, judgment or order passed by such courts. 28. 28. Similarly, in the absence of entries of "administration of justice" and "jurisdiction and powers" in the three Lists, the expression "constitution and organization" could be given a wider scope as for "administration of justice". The legislature has the inherent power to make laws within their legislative competence. Making of laws has no connection with the administration of justice. Laws made determine the rights of the parties and such rights are enforced through the courts duly established and what the courts do is to administer justice according to the law. The establishment of Courts is for the administration of justice and if "constitution and organization" alone, and not the other two expressions, was included in the legislative list, "constitution and organization" would easily include what can be said to be comprised in the expression "administration of justice." 29. In the same manner if the expressions "administration of justice" and "constitution and organization" had not been specifically provided for in the Lists, "jurisdiction and powers of Courts" would include the establishment of courts for the simple reason that there must be some tribunal to exercise the jurisdiction and powers prescribed by the legislature. 30. It is thus evident that the three expressions "administration of justice", "constitution and organization" and "jurisdiction and powers" are overlapping and in the absence of the other two, any of these expressions can be given a wide legislative field to include what is or can be deemed to be included in "administration of justice." 31. The scope of these expressions is now to be considered in the light of these entries existing in different legislative lists, so far as the High Courts are concerned. "Administration of justice" is included in Entry 3 of State List II. The State Legislature has the exclusive power to make laws in respect of "administration of justice." "Constitution and organization of all courts except the Supreme Court and High Courts" has also been included in Entry 3, but "constitution and organization of High Courts" finds place in Entry 78 of Union List I, which lays down the exclusive field of legislation of the Parliament. "Jurisdiction and powers of all courts except the Supreme Court" finds place in Entry 95 of Union List I, Entry 65 of State List II and Entry 45 of the Concurrent List III. "Jurisdiction and powers of all courts except the Supreme Court" finds place in Entry 95 of Union List I, Entry 65 of State List II and Entry 45 of the Concurrent List III. These Entries restrict the scope of "jurisdiction and powers" to the matters enumerated in the Lists. The Parliament can, therefore, make laws as to the jurisdiction and powers of all the courts with respect to the matters in Lists I and III, while the State Legislature can make laws as to the jurisdiction and powers of all courts except the Supreme Court with respect to the matters in List II and with the assent of the President with respect to any of the matters in List III. When similar subjects have been included in different legislative lists, the real question arises as to how these entries have to be construed? Naturally, each Entry cannot be given the widest scope, nor can it be given effect to in its widest amplitude. The scope of some shall have to be restricted. 32. Where there exist overlapping entries in the Lists assigned to different legislature, they should be so construed as to give effect to all of them and a construction which will result in any of them being rendered futile or otiose must be avoided. (Waverly Jute Mills Co. Ltd. v. Raymon and Co. (India) Pvt. Ltd. AIR 1963 SC 90 and AIR 1962 SC 256 ). Another well recognized rule of construction, as laid down in AIR 1968 SC 888 , is : "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 thp latter in its ordinary and natural meaning. 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 thp latter in its ordinary and natural meaning. It is, therefore, right to consider whether a fair reconciliation cannot be effected by giving to the 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 harmonized to avoid such a conflict of jurisdiction." 33. The Court never ascribes to the legislature an intention to enact a sterile clause ( AIR 1962 SC 256 ). Consequently, where there are two entries, one general in its character and the other specific, the former must be construed as excluding the latter, ( AIR 1963 SC 90 ). The field of legislation must be carved out for the entry and this part is to be excluded from the general entry ( AIR 1968 SC 888 ). 34. Another rule which is often applied to overlapping entries is the rule of pith and substance. "It is usual to examine the pith and substance of legislation with a view to determining to which entry they can be substantially related, a slight connection with another entry in another list notwithstanding." (The Second Gift Tax Officer, Mangalore v. D.H. Hazareth AIR 1970 SC 999 ; AIR 1951 SC 69 ; AIR 1941 FC 16 and Profulla Kumar v. Bank of Commerce Ltd., Khulna, AIR 1947 PC 60). 35. 35. Broadly speaking, it can be laid down that in the case of two competing or overlapping entries existing in different Lists, both not being within the legislative competence of the same legislature, each entry must be given its widest amplitude, consistent with the reservation of a field of legislation for another entry, and the width of such interpretation be not such as to make either of the entries a nullity, or to unreasonably cut down the amplitude thereof. In the case of such competing entries the field of legislation for an entry which can be regarded as special and not general, shall exclude the field of a general entry and in order not to make any of the entries futile or otiose, such amplitude may be given to the special entry as not to unduly reduce the scope of the general entry. The scope of the special entry can be restricted to matters which must be comprehended therein. It shall thereby be possible to maintain the scope of a general entry which must be given the widest amplitude and at the same time the special entry shall cover matters which must be included in such entry. 36. In this view of the matter "jurisdiction and powers" covered by Entry 95 of List I, Entry 65 of List II and Entry 46 of List III of the Seventh Schedule of the Constitution of India will form a special group as compared to "administration of justice" and "constitution and organization". While considering the latter two entries "administration of justice", which is or can be used in a wider sense, can be regarded as a general entry while "constitution and organization" as a special entry. Consequently, Entries 95, 65 and 46 of the three Lists shall exclude "administration of justice" in Entry 3 of List II and "constitution and organization of High Courts" in Entry 78 of List I ; and in case of High Courts, Entry 78 of List I shall exclude Entry 3 of List II. 37. There is no longer any controversy as to the nature and scope of the three Entries 95, 65 and 46 in respect of "jurisdiction and powers of courts other than Supreme Court". 37. There is no longer any controversy as to the nature and scope of the three Entries 95, 65 and 46 in respect of "jurisdiction and powers of courts other than Supreme Court". This is, one may say, a special provision whereunder in respect of the matters enumerated in the Lists the competent legislature can confer jurisdiction and powers on the existing Courts established by the competent legislature or it can create special courts or tribunals, or curtail or abol's the jurisdiction and powers of the existing Courts. Any legislation in respect of jurisdiction and powers under the three entries must relate to the matters detailed in the corresponding List. 38. The next question for consideration, which is the main controversy between the parties, is what legislative field be reserved for the expression "constitution and organization" so that the field of "administration of justice" be not unreasonably restricted. 39. The meaning of the words "Constitute, Constituted or Constitution", "Establish" and "Organize, Organized or Organization" has been given in the dictionaries as below : A New English Dictionary on Historical Principles (Oxford) Vol. II, p. 876. Constitute : 2-B. To appoint to the office, function, or dignity of ; to make, create (with obj. and compl.). 4. To set up, establish, found (an institution, etc.) b. To give legal or official form or shape to (an assembly, etc.) 5. To frame, form, make (by combination of elements) ; esp, in pass, to have a constitution or make of a specified sort. (Very frequent in reference to the bodily or mental constitution). 6. To make (a person or thing) something : to establish or set up as (With obj. and compl.) Cf. 2. 7. (with simple obj.) To make (a thing) what it is ; to give its being, to, form, determine. 8. To make up, form, compose ; to be the elements or material of which the thing spoken of consists (Correlative to Consist 7). Constitution : 1. The action of constituting, making, establishing, etc. see the verb. 3. A decree, ordinance, law, regulation ; usually, one made by a superior authority, civil or ecclesiastical, spec, in Rom, Law, an enactment made by the Emperor. Also fig. (Now only Hist). 4. The way in which anything is constituted or made up : the arrangement or combination of its parts or elements, as determining its nature and character, make, frame, composition. Also fig. (Now only Hist). 4. The way in which anything is constituted or made up : the arrangement or combination of its parts or elements, as determining its nature and character, make, frame, composition. Constitution of nature of the world, of the universe of things (the actual existing order) so of society, etc. b. Composition in reference to elements. 6. The mode in which a state is constituted or organized. 7. The system or body of fundamental principles according to which a nation, State, or body politic is constituted, and governed. A New English Dictionary on Historical Principles (Oxford) Vol. VII, Pp. 195 and 196. Organize : 1. trans. To furnish with organs ; to render organic; to give the structure and interdependence of parts which subserves vital processes ; to form into a living being, or living tissue. Usually in pa. pple ; see also Organized I. b. intr. for refl. To become organic, be formed into living tissue. 2. gen. To form into a whole with mutually connected and dependent parts ; to co-ordinate parts or elements so as to form a systematic whole (with either the whole or the parts as object :); to give a definite and orderly structure to ; to systematize ; to frame and put into working order (an institution, enterprise, etc.) ; to arrange or 'get up' something involving united action. Organisation : 1. The action of organizing or condition of being organized, as a living being ; connexion and co-ordination of parts for vital functions or processes ; also the way in which a living being is organized; the structure of an organized body (animal or plant), or of any part of one ; bodily (rarely mental) constitution. b. The fact or process of becoming organized or organic ; in path, conversion into living tissue. c. Concr. An organized structure, body or being ; an organism. 2. gen. The action of organizing or putting into systematic form ; the arranging and co-ordinating of parts into a systematic whole. b. The condition of being organized ; the mode in which something is organized ; co-ordination of parts or elements in an organic whole ; systematic arrangement for a definite purpose. Webster's Third New International Dictionary : Constitute : 1. a. to appoint to an office, function, or dignity (constituted authorities) b. to make (a person-or thing) something. 3. b. The condition of being organized ; the mode in which something is organized ; co-ordination of parts or elements in an organic whole ; systematic arrangement for a definite purpose. Webster's Third New International Dictionary : Constitute : 1. a. to appoint to an office, function, or dignity (constituted authorities) b. to make (a person-or thing) something. 3. to set-up ; establish ; as a ; to put into force (as a law) enact ; b. Found (a social club for immigrants) ; formally establish (a provisional government). c. to give due or lawful form to (as a proceeding or document) Legally process (an agreement constituted by writing) d. to cause (as a trait) to become fixed : Determine 4 ; to make up (the element or elements of which a thing, person or idea is made up. Form, Compose). Constitution : 1. a (1) an authoritative ordinance or enactment. 2. the act of establishing, making or setting up (before the - of civil laws). 4. the mode or manner in which something is constituted, constructed, or organized : 5. the mode in which a State or society is organized : esp : the manner in which sovereign power is distributed. 6. a. the system or body of fundamental rules and principles of a nation. State or body politic that determines the power and duties of the government and guarantees certain rights to the people. Webster's New Twentieth Century Dictionary, Second Edition : Organize : 1. to provide with an organic structure ; to systematize. 2. to arrange ; establish ; institute ; bring into being. 3. (a) to enlist in or cause to form, a labour union ; (b) to enlist the employees of (an industry, store, etc.) in a labour union. Organisation : 1. An organizing or being organized. 2. Organic structure ; manner of being organized. 3. An organism. 4. Any unified, consolidated group of elements ; systemised whole ; especially, a body of persons organized for some specific purpose, as a club, union or society. 5. The administrative, personnel or executive structure of a business 6. All the functionaries, committees ; etc. of a political party. 2. Organic structure ; manner of being organized. 3. An organism. 4. Any unified, consolidated group of elements ; systemised whole ; especially, a body of persons organized for some specific purpose, as a club, union or society. 5. The administrative, personnel or executive structure of a business 6. All the functionaries, committees ; etc. of a political party. WORDS AND PHRASES PERMANENT EDITION Volume 15 Establish : "In General : The word "establish" has many meanings varying with the subject-matter with which it is used and when used with reference to a state a colony or other institution, it means to originate and secure the permanent existence of, to found to institute, to create and regulate. Tempkins v. District Boundary Ed. of Yamhill Country, 177 P. 2d 416, 421, 180, Or. 339." Volume 8-A Constitution : "A constitution is an act of extraordinary legislation by which the people establish the structure and mechanism of their government, and in which they prescribe fundamental rules to regulate the motions of the several parts," Fakin v. Baub, pa. 12 serg. and 330, 347. A constitution is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised, and its provisions are the rules of conduct for those branches of the Government which exercise the sovereign power, State v. Griswold, 34 A 1046, 1047, 67 Conn 290, 33 LRA 227." Volume 30 Organization : Under statute providing that, until articles of incorporation should be recorded, the corporation should transact no business except its own organization. It is held that the term "organization" means simply the process of forming and arranging into suitable disposition the parties who are to act together in, and denning the objects of the compound body. Abbott v. Omaha Smelting and Refining Co. 4 Neb 415, 421. "Organization" is defined as an arrangement of parties the act of organizing as the organization of a Government or of a rail-road or other corporation and as used in reference to the organization of a school, signifies the bringing together the collecting the placing in, the committing of boys or other inmates to, a school, and hence, the purpose of Gen. St. 1889, par. St. 1889, par. 6516, providing for the committing of boys under the age of 16 to a reform school by courts of record, is sufficiently expressed in its title, as "an act for the organisation and management of the State Reform School". In re Sanders, 36 P. 348, 349, 53 Kan, 191, 23 LRA 603. CORPUS JURIS SECUNDUM Volume 15, Constitute : Defined generally by the Standard Dictionary as meaning to form or be the substance of, and by the courts, as meaning to be, to compose, or to make up. As sometimes used, it has been held synonymous with "establish", "make", "ordain" and ''pass". Constituted has been employed as meaning forming a component part. Constitution : In its technical legal sense, something constituted, being generally used to designate the written evidence of something which can have only a legal existence ; and still more specifically, the charter, framework, or fundamental law of a nation or State, or the regular form or system of Government. Volume 30, Establish : Primary Sense. In its primary sense, it has been defined as meaning to being into being, create, or originate, to form, make, or model ; to build or erect ; to constitute ; to found ; to institute ; to locate ; to organize ; to prepare ; to set up ; but not to acquire something which has already been brought into existence. Broader Senses. In general, the term, however, is not limited to the signification of to found and set up, for it is as often employed to signify the putting or fixing on a firm basis, putting in a settled or efficient state, an existing legal organization or institution, as it is to founding or setting up such organization or institution ; and the one meaning is as little recondite, abstruse ; or obscure as the other. Connoting stability or permanence. In its broader sense the word has been defined as meaning to make firm or stable ; to make firm or sure ; to make firm or to augment ; to make stable ; to make stable and firm ; to make steadfast, firm, or stable ; to place upon a secure foundation or basis ; to place upon a firm foundation ; and hence to strengthen that which is already in being.......... to appoint or constitute for permanence, as officers, laws, regulations etc. to appoint or constitute for permanence, as officers, laws, regulations etc. Volume 67, Organize : In common use the word "organize" is without doubtful or ambiguous meaning. It is defined as meaning to arrange individual elements inter-dependently each individual having a special relationship with respect to the whole ; to arrange or constitute in parts, each having a special function act, office, or relation ; to arrange in order for the normal exercise of its appropriate functions ; to systematize ; to establish or furnish with organs to form with suitable organs to put into working order. Organized : Erected established, constituted, composed and formed as to its constituent parts. Organization : An arrangement of parties, formation ; the act of organizing ; the connection of pats in and for a whole ; so that each part is at once end and means. The term implies legal organization, and a recognition of order and an obedience to duly constituted authority. 40. From the above it shall be evident that the words "constitute", "establish", "organize" are to a considerable extent synonymous. Constitution is the mode in which the State is constituted or organized. The word "constitute" has virtually the same meaning as "establish". However, the word "organize" or "organization" is generally used in a wider sense. Organization has a reference to the systematic form or working of an institution. Organization is the action, of putting into systematic form, or arranging or connecting parts into a systematic whole. Organization also conveys the meaning of systematic arrangement for a definite purpose. In the Words and Phrases, Permanent Edition. "Organization" has been defined on the basis of certain American decisions as an arrangement of parties and in reference to the organization of a school, signifying the bringing together the collecting, the placing in, the committing of boys and other inmates to the school. In the Words and Phrases, Permanent Edition. "Organization" has been defined on the basis of certain American decisions as an arrangement of parties and in reference to the organization of a school, signifying the bringing together the collecting, the placing in, the committing of boys and other inmates to the school. Broadly speaking, therefore, it can be said that whatever is necessary for the systematic working of an institution for the purpose it has been established, falls in the category of "organization" or "constitution", though when both the words "constitution" and "organization" have been used together, the scope of "constitution" would be less than of "organization." Further, in the case of a country "constitution" is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised, and its provisions are the rules of conduct for those branches of the Government which exercise the sovereign power (See Words and Phrases, (Permanent Edition). The constitution of a court is not complete with the determination of the place where it shall discharge its judicial functions and the appointment of Judges of such Court, "Constitution" must provide for rules and practice of such Court, as a result of which the decision of a Judge or Judges, not all the Judges of the Court, can be regarded as the decision of the institution (High Court). This has reference to the practice and procedure of the High Court which, in a loose term, is often said as the internal working or arrangement of the High Court. 41. In case the constitution of a Court merely implies the determination of the place of sitting and the appointment of the presiding officer of the Court, such constitution shall not be of any practical value. Each Court duly constituted must have a pre-determined territorial jurisdiction : the purpose of establishing the Court has to be made clear, whether the Court has been created for deciding civil, criminal or revenue matters, and what is the maximum pecuniary jurisdiction of the Court. For example, when the Court of a Munsif is established or constituted (they being called Subordinate Judges in certain State), its territorial jurisdiction, being a civil court, and the pecuniary jurisdiction have to be specified failing which the litigant public shall be in doubt where he can seek his legal remedy. Place of sitting is usually also specified. For example, when the Court of a Munsif is established or constituted (they being called Subordinate Judges in certain State), its territorial jurisdiction, being a civil court, and the pecuniary jurisdiction have to be specified failing which the litigant public shall be in doubt where he can seek his legal remedy. Place of sitting is usually also specified. In case there is no legislation limiting the subject-matter jurisdiction of the Court, any dispute within its territorial and pecuniary limits can be instituted in such Court. However, under the three entries of the Lists pertaining to "jurisdiction and powers", the competent legislature can confer additional powers on such Courts or by implication or otherwise withdraw such jurisdiction which could otherwise be exercised by it. To put it differently, in the case of Courts or Tribunals consisting of one presiding officer, or if presided over by more than one. the jurisdiction has to be exercised by all of them acting together, "constitution and organization" must include not only the place of sitting and the appointment of the officers but also territorial and pecuniary jurisdiction, and the nature of jurisdiction whether civil, criminal or revenue. In the case of the High Courts "constitution and organization" must include the formation of Benches, which case shall be heard by a Single Judge or by a Bench of two or more Judges, and also the manner in which the judgment of a Single Judge can be challenged before the same High Court thereby to have the final shape of a decision of the High Court. Constitution of Benches and Letters Patent Appeals can thus easily be included in "constitution and organization." 42. The matter can be considered from another angle also. Under the Government of India Act, 1935 "constitution and organization" of the High Court was placed in Entry 1 Provincial List II. In the Draft Constitution of India also this item was placed in the State List II, but was later transferred to Union List I. For proper interpretation of the expression "constitution and organization", one must determine why this change was introduced, and the object of transferring "constitution and organization" to List I can be utilized in laying down the meaning and scope of the expression. 43. 43. Legislative proceedings cannot be referred to for the purpose of construing an enactment, but they are relevant for the proper" understanding of the circumstances under which it was passed and the reasons which necessitated it. The Constituent Assembly Debates can be looked into for this restricted purpose. (Chiranjit Lai Chowdhury v. Union of India, AIR 1951 SC 41 ). Two speeches printed in Volume IX of the Constituent Assembly Debates are material on this point. They are as below : (1) The Honourable Dr. B.R. Ambedkar : ".........but I would like to point out that we have already passed Articles 192-A, 193, 197, 201 and 207 which deal with the constitution of the High Courts. Under those Articles except for pecuniary jurisdiction, the whole of the High Courts are placed, so far as their constitution, organization and territorial jurisdiction are concerned, in the Centre. It seems to me therefore, that this amendment is out of order."......... Well, we have deliberately brought in the High Courts because we felt that it was necessary to bring in High Courts in view of certain Articles that we have already passed......... Articles 192-A,193, 197, 201 and 207......... he will find that the only matter that is left to the Provincial Legislature is to fix jurisdiction of the High Courts in a pecuniary way or with regard to the subject-matter. The rest of the High Court is placed within the jurisdiction of the Centre. Obviously when considering entries in the Union List which are meant to give complete power to the Centre, we were bound to make good this lacuna and to bring in the High Courts which, as I said by virtue of these Articles excepting for two cases have been completely placed within the purview of the Parliament."