MULCHAND KUNDANMAL JAGTIANI Vs. RAMAN HIRALAL SHAH

JUDGEMENT

(1.) THE plaintiff filed a suit on July 2, 1948, on two promissory notes. A. plaint was also prepared in respect of a suit on a promissory note on August 27, 1948, and an application was made to take that suit on the file of this Court, and the question that arises both in the suit and in the application is whether this Court has jurisdiction to try these two suits, and the question of jurisdiction can only be determined by considering whether a recent piece of legislation passed by the Provincial Legislature is intra vires with regard to certain of its provisions.

(2.) BOMBAY Act XL of 1948, an Act to establish an additional City Civil Court for Greater BOMBAY, received the assent of the Governor General on May 10, 1948, and the Act came into force on August 16, 1948. The material provisions of the Act are that it sets up an additional Civil Court for the Greater BOMBAY for the trying of all suits of a civil nature not exceeding Rs. 10,000 in value and arising within the Greater BOMBAY. In Section 3 of the Act certain kinds of suits are excluded from the purview of this new Court, but we are not concerned with those excepted. suits. Section 12 bars the jurisdiction of this Court in all those suits which are made cognizable by the City Civil Court. Therefore the position is that whereas before the passing of this Act the High Court had jurisdiction to try all suits from Rs. 1,000 upwards on its Original Side, now suits up to the value of Rs. 10,000 would be solely triable by the City Civil Court. Section 18 provides for the transfer of suits pending in the High Court, and the effect of that section is that all suits, which were pending in this Court in which issues had not been settled or evidence had not been recorded on or before the date of the coming into force of the Act, were to be transferred to the new Court which was established.

(3.) NOW, in order to determine whether the impugned legislation falls within List I and therefore ultra vires of the Provincial Legislature, we have to consider what the nature of the legislation is. It is entirely fallacious to argue, as was sought to be argued at one stage, that the well-known argument of pith and substance does not apply to the case before us. The pith and substance argument really amounts to this. The Court must look at the true nature and effect of the legislation which it is considering. It must consider its scope and ambit, it must consider its true aspect from the point of view of the Legislature and must come to the conclusion what is the legislation about. It must not be misled by mere technicalities or by legal phraseology which may conceal the true intent of the Legislature, but must fairly arrive at 8 conclusion as to what is the true nature and character of the legislation which it is considering. The Privy Council in a very recent case has very clearly enunciated this principle. The decision is to be found in Prafulla Kumar Mukherjee v. Bank of Commerce Lid. , Khulna (1947) L. R. 74. I. A. 23, s. c. 49 Bom. L. R. 568. The judgment was delivered by Lord Porter, and it would indeed be audacity of the highest order for me to try and improve upon what has been so lucidly and succinctly stated by Lord Porter as the true principles which should govern the consideration of whether a particular piece of legislation is ultra vires or not. Reading the Privy Council case I find certain principles that emerge which I will briefly state. The first is that although it is not always wise to construe the Indian Constitution Act by analogy with the Canadian or the Australian Constitution Acts, even so both in the interpretation of the Canadian and the Australian Acts and in the Indian Act the pith and substance argument fully applies. The second principle that emerges is that when you have different subjects mentioned in different lists, subjects are bound to overlap, and when they do overlap, what the Court must do is to find out what is the nature of the enactment in pith and substance and in which List does it fall according to its true nature and character. The Privy Council also clearly asserts that a Provincial Act may encroach upon the Federal field, but what the Court must do is to determine the extent of that invasion and the Court must do so in order to find out whether in pith and substance the legislation really falls in the Provincial field. The mere fact that there is a trespass by the Provincial Legislature upon the Federal field does not necessarily make the Provincial legislation ultra vires. The extent and nature and character of the trespass must be considered, and if the Court finds that the trespass is such as to make the legislation really a legislation which falls in one of the items in List I, then alone the Court would say that the legislation is ultra vires. Finally, the main principle laid down in this case of the Privy Council is that the Provincial Legislature may deal with a Federal subject if it is only an ancillary or incidental effect of the legislation, provided that in substance it is dealing with a Provincial subject.