Decided on July 28,1970



Sabyasachi Mukharjee, J. - (1.) This is an appeal against the order and judgment of P.K. Banerji, J. dated 25th November. 1969 rejecting the petitioners' application under Article 226 of the Constitution without issuing a rule nisi. The petitioners are the three practising attorneys of this High Court, and in the petition there was a prayer for leave under Order 1. Rule 8 of the Code of Civil Procedure. During the hearing of this appeal, learned Advocate for the petitioners, abandoned the prayer for leave under Order 1, Rule 8 of the Code of Civil Procedure. The application has therefore been treated as an application by the three named petitioners in their individual capacity and not in their representative capacity. In the application the petitioners challenge the establishment of City Civil Court by the Calcutta City Civil Court Act, 1953 (West Bengal Act No. XXI of 1953) and the amendment of the said Act by the City Civil Court (Amendment) Act. 1969 being West Bengal Act XXXV of 1969 and notification made on the 4th November. 1969 relating thereto, as ultra vires the powers of the State Legislature. The application was moved before P.K. Banerji, J., who as mentioned hereinbefore declined to issue a rule nisi. P.K. Banerji, J., was of the opinion that the matter was covered by the decision of Sinha, J. (as his Lordship then was) in the case of Amrendra Nath Roy Chowdhury v. Bikash Chandra Ghose, The learned trial Judge was further of the opinion that the expression, 'constitution' in Item No. 3 of List II of Schedule VII of the Constitution of India was wide enough to empower the State Legislature to establish additional courts. The learned Judge further came to the conclusion that the petitioners being practising attorneys of this Court were guilty of delay in making this application. For these reasons, the learned Judge dismissed the application. Having heard the parties, we were clearly of the opinion, that the case made out in the petition is certainly an arguable prima facie case and petitioners were entitled to ask for the issuance of a rule nisi for the further consideration of the matter. But learned Advocates for both the petitioners and the respondents contended before us that we should not only consider whether there is an arguable prirna facie case entitling the petitioners to a rule nisi but further examine the rival contentions of the parties on the points raised and give our decision on the merits of the contentions raised on behalf of the petitioners. As in this case the questions involved are essentially questions of law and there is hardly any scope for any elucidation of facts by giving the respondents opportunity of filing any affidavit in opposition and further in as much as the respondents have been served with the notice of the appeal and have appeared and made submissions before us and also in view of the importance of the points involved in this application, we have decided to examine the contentions urged on merits on behalf of the petitioners.
(2.) Learned Advocate for the petitioners contended before us that the establishment of the City Civil Court was beyond the competence of the State Legislature. It has been urged that the Parliament alone has the power and the authority under the Constitution to establish additional courts. Reliance was placed on the relevant entries in the different lists of the Schedule VII of the Constitution. It was also contended that in any event by the amendment of 1969 the State Legislature has purported to legislate on matters enumerated in List I and the amendment is ultra vires the powers of the State Legislature. It was contended by learned Advocate for the petitioners, that the expression "establishment" Is different from the expression 'constitution'. Furthermore the difference, it was urged, would be apparent from the fact that our Constitution uses different expressions, "constitution" as well as "establishment" and they must be so construed as signifying different meanings. It was urged that the decision of Sinha, J,, on which reliance was placed by P.K. Banerji. J., did not have occasion to consider the relevant provisions of the Constitution, as the very establishment of the City Civil Court was not challenged in the petition before Sinha. J., in the case of (supra).
(3.) The City Civil Court Act, 1953, being Act 21 of 1953, was passed by the West Bengal Legislature and the assent of the President was published in the Calcutta Gazette on the 1st of September, 1953. It is an Act to establish an additional Court for the City of Calcutta. The preamble of the Act states that whereas it is expedient to establish an additional Court for the City of Calcutta, the Act was being passed. Section 3 of the Act states that the State Government may, by notification, in the Official Gazette, establish Civil Court to be called the City Civil Court. The City Civil Court, it has been provided, would be a Court subordinate to and subject to the superintendence of the High Court within the meaning of the Letters Patent for the High Court and of the Code of Civil Procedure, 1908. Section 4 provides for the appointment of Judges. Section 5 of the Act states that the local limits of the jurisdiction of the City Civil Court shall be the City of Calcutta. Section 5 has undergone an amendment in 1969. Sub-section (2) of Section 5 originally provided that City Civil Court would have jurisdiction and the High Court would not have jurisdiction to try suits or proceedings of civil nature, not exceeding rupees ten thousand in value. Sub-section (3) gave City Civil Court jurisdiction and took away jurisdiction of the High Court in respect of the proceeding under the Guardians and Wards Act. 1890 and Part X of the Indian Succession Act. 1925, (XXXIX of 1925), in respect of succession certificates. Sub-section 4 states that the City Civil Court shall not have jurisdiction to try suits and of the description specified in the First Schedule. This Schedule has also undergone considerable amendments in 1969. Under Sub-section 2 the value has been Increased to rupees fifty thousand. We shall have to deal with the effect of the amendments later in this judgment. It was contended that as a result of these amendments the matters in respect of which jurisdiction has been conferred upon the City Civil Court by the Act of the West Bengal Legislature are matters enumerated in List 1 of the 7th Schedule of the Constitution and as such the West Bengal State Legislature was incompetent to legislate upon these subjects. Sub-section (5) of Section 5 provides that all suits and proceedings which are not triable by the City Civil Court shall continue to be triable by the High Court or the Small Cause Court or any other Court, the tribunal or authority as the case may be as before the Act. Section 6 provides that the procedure to be followed in City Civil Court shall be as provided by the Code of Civil Procedure. Section 7 provides for the law to be administered by the City Civil-Court. Section 8 provides for appeal. Originally Section 9 gave the High Court in exercise of its original civil jurisdiction, powers to remove suits or proceedings to itself, upon certain conditions. That section has been repealed by the amendment of 1969. Sections 10 to 16 deal with the set up of the City Civil Court. Section 17 gives the attorneys right to act and plead in City Civil Court. Section 18 deals with the seal. Section 19 provides for the rule making power. Section 20 stipulates that pending suits and proceedings would not be affected.;

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