KAVASJI PESTONJI DALAL Vs. RUSTOMJI SORABJI JAMADAR

JUDGEMENT

(1.) THIS is a suit filed by the plaintiff to eject his tenant. The defendant has pleaded the protection of the Rent Restriction Act. At the hearing; of the suit before Mr. Justice Desai attention was drawn to the relevant provisions. of Bombay Act LVII of 1947 under which all pending suits relating to recovery or fixing of rent or possession of premises to which that Act applied had to be transferred to and continued before the Court of Small Causes, Bombay. It was then contended both by the plaintiff and the defendant that Sections 28, 29 and 50 of that Act were ultra vires of the Provincial Legislature and were also repugnant to existing law and void and of no effect. Mr. Justice Desai directed that the plaint should be amended to make the necessary averments and that the Province of Bombay should be made a party to the suit. Consequently the plaint was amended and para, 2-A was added, containing the relevant averments and the Province of Bombay was made a party defendant to the suit. As the questions raised were of onsiderable importance, Mr. Justice Desai requested me to constitute a divisional bench to hear the suit. I thereupon directed that the suit should be placed before me and my brother Tendolkar J. and it has now come on for hearing.

(2.) THE contention that Sections 28, 29 and 50 of Act LVII of 1947 were repugnant to any existing law and therefore void and of no effect was not pressed at the hearing and in fact given up. THErefore, two of the three preliminary issues which arise survive and have to be considered by us, and these are whether Sections 28, 29 and 50 are ultra vires of the Provincial Legislature and whether this Court has jurisdiction to try the suit.

(3.) THE short question that therefore arises is whether the Provincial Legislature has the power to deprive the High Court of its original civil jurisdiction in certain stated matters. THE scheme of the Government of India Act, 1935, is to distribute legislative powers between the Central and Provincial Legislatures. THE Seventh Schedule to the Act contains three Lists : List I enumerates matters with respect to which the Federal Legislature has the sole power to make laws ; List II enumerates matters with respect to which the Provincial Legislature has the sole power to legislate; and List III enumerates subjects in respect of which both the Federal Legislature and the Provincial Legislature have the power to make laws. In case of conflict or overlapping, List I prevails over List II and List III prevails over List II. Item No.21 in List II deals among other things with land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents, and it is not disputed that the subject matter of Act LVII of 1947 falls within this item. Item No.2 in the same List deals with jurisdiction and powers of all Courts, except the Federal Court with respect to any of the matters in this List, and it is also not disputed that the Provincial Legislature can affect the jurisdiction and power of the High Court with respect to questions relating to tenancy legislation. Civil Procedure falls in List III being item 4. It is also now well settled that within its own domain although the Provincial Legislature is the creature of the Government of India Act, it is supreme and sovereign.