D GOBALOUSAMY Vs. UNION TERRITORY OF PONDICHERRY

JUDGEMENT

(1.) IN these related petitions under Article 226 of the Constitution, the validity of the Pondicherry Civil Courts Act, XII of 1966 is challenged. W. P. No. 2634 of 1966 has been filed by D. Gobalousamy, Advocate Council and President of the Bar association, Pondicherry and W. P. No. 3294 of 1968 by J. Gnany, President of the Court of First instance, Pondicherry, who, besides attacking the validity of the Act on general grounds, raises grounds personal to him.

(2.) THE impugned Act was passed by the Legislative Assembly of Pondicherry, and received the assent of the President on 21st October, 1966. It extends to the whole of the Union Territory of Pondicherry and Section 1 (3) of the Act provides that it shall come into force on such date as the Government may by notification in the Official Gazette, appoint. Different provisions of the Act may be brought into force on different dates. The scheme of the enactment, in the main, is to substitute for the Tribunal Superieurd' Appeal, Courts of Tribunal declare instance and Judge de Paix, Courts exercising civil Jurisdiction, Courts of District Judge, subordinate Judge and Munsif respectively. Certain transitory provisions are made and certain special provisions are enacted for pending proceedings. In substance, the old judicial system is sought to be abolished and the judicial system with its hierarchy of Courts prevailing in the neighbouring States substituted. While the affidavit in support of the petition covers a wide ground of attack on the validity of the Act the arguments before us are confined within very narrow limits. The competency of the Pondicherry Legislative Assembly to enact the Civil Courts Act and particularly Section 6 of the Act which Indicates in the new set up the successor Courts under the Act to the existing Courts is questioned. It is submitted that the Legislative power for the enactment is to be found only under Entry 3 of the State List, and that, under Article 246 (4), Parliament and Parliament alone has power to make laws with respect to any matter in the State List for the Union territories. On the premises it is argued that there has been an unconstitutional delegation by Parliament of legislative powers when under the Government of union Territories Act XX of 1963, it invested the Legislative Assembly for the Union territory of Pondicherry legislative powers with respect to entries in the State List of the VII Schedule to the Constitution. Virtually what is questioned is the related provisions of Act XX of 1963, the contention being that there under there has been an abdication of Legislative power by Parliament.

(3.) ARTICLE 246 which distributes the legislative powers between the Parliament and state Legislatures, invests, under Article 246 (4), Parliament with plenary power of legislation for the Union Territories with regard to any subject. Under that Article, parliament has power to make laws with respect to any matter for any part of the territory of India not Included in a State notwithstanding that such matter is a matter enumerated in the State List. While exclusive power to legislate with respect to the matters enumerated in the State List is assigned under Article 246 (3)to Legislatures of States specified in the First Schedule to the Constitution, there is no distribution of legislative power specifically to Legislative Assemblies of Union territories in Part XI of the Constitution and the power to legislate for Union territories even with respect to matters enumerated in the State List is found in parliament under Article 246 (4 ). But Article 246 (4) has to be read along with Article 239a inserted by the Constitution (14th Amendment) Act of 1962, Article 239a invests Parliament with power to constitute local Legislatures or Council of ministers or both for certain Union Territories. It runs thus:--