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not less than one half were to be non-official, that is to say, persons not in the Civil or Military services of the Crown. "One Lieutenant-Governor of a province was also to be an "additional member whenever the Council held a legislative "sitting within his province" (Ilbert, p. 103). This statute is a landmark in the history of Indian legislation, for it was now for the first time that practical effect was given to the theory that the power of legislation should not rest with the executive authority. The constit ation of the legislative machinery as now constituted is sufficient proof of this proposition, but there are in the provisions of the statute further proofs. In the first place there is the provision which validated the rules, laws and regulations made before the passing of the statute by the Governor-General in Council and other authorities otherwise than in conformity with the provisions of the Charter Acts. The very fact that it was deemed necessary to validate these "laws "shows that the Governor-General in Executive Council had, or was supposed to have had, no power to legislate otherwise than in strict accordance with the provisions of the statute which conferred powers of legislation upon him in that capacity. But while it was provided that ordinarily legislation should for the future be effected only by the Governor-General in Legislative Cour cil, it was realised that in times of emergency it might be necessary to legislate in a more summary manner, and it was accordingly provided (by Section 23 of the said Statute) that" the Governor-General may in cases of emergency make "and promulgate ordinances for the peace and good Govern"ment of British India or any part thereof, and any ordinance "so made has, for such period not exceeding six months from "its promulgation as may be declared in the notification, the "like force of law to a law made by the Governor-General "in Council at a legislative meeting; but the power of making "ordinances under this section is subject to the like restric"tion as the power of making laws at legislative meetings; "and any ordinance made under this section is subject to "the like disallowance as a law passed at a legislative meeting, "and may be controlled or superseded by any such law." The power thus conferred is of a most exceptional character, and, according to the despatch of the Secretary of State, should be exercised only on urgent occasions.

From the provisions of the Indian Councils Act of 1861 it is, I think, clear that, except for very special and most

exceptional purposes, the power of legislation, originally vested in the Executive authorities, has been transferred to a body which is in constitution entirely distinct from the GovernorGeneral in Executive Council. In some very important particulars these provisions have been considerably modified by the Indian Councils Act of 1892 (55 and 56 Victoria, C. 14), but for the purposes under reference these modifications are not relevant and the general proposition is true that the power of the Executive Council of the Governor-General to legislate is now extremely circumscribed and very strictly defined. But in 1870 further powers of legislation were, under specified circumstances, conferred upon the Governor-General in Council. It was found as a matter of experience that legislation in the ordinary manner was extremely difficult, if not impracticable in the case of new and backward territories acquired by the Crown, and upon the suggestion of Sir H. S. Maine, the then legal member of Council, a statute was passed (33 and 34 Victoria, C. 3) which for this purpose and to this extent restored to the Governor-General in Executive Council the summary power of legislation originally possessed by him in that capacity. This statute, which was enacted "with the object of providing a more summary legislative procedure for the more backward parts of British India," (Ilbert 214) provides as follows (Sections 1 and 2): "Every Governor of a Presidency in Council, "Lieutenant-Governor or Chief Commissioner, whether the "Governorship or Lieutenant-Governorship or Chief Com"missionership be now in existence. or may hereafter be established, shall have power to propose to the Governor"General in Council drafts of any regulations, together with "the reasons for proposing the same, for the peace and govern"ment of any part or parts of the territories under his govern"ment or administration to which the Secretary of State for "India shall, from time to time, by resolutions in Council, "declare the provisions of this section to be applicable from any "date to be fixed in such resolution."

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"And the Governor-General in Council shall take such "draft and reasons into consideration; and when any such draft "shall have been approved of by the Governor-General in "Council, it shall be published in the Gazette of India and in "the local Gazette, and shall thereupon have the like force of "law and be subject to the like disallowances as if it had been "made by the Governor-General of India in Council at a "meeting for the purposes of making laws and regulations."

It is under the provisions of this statute that Regulation No. I of 1906, which adds clause 87 A to Regulation No. VII of 1901, purports to have been made. In my humble opinion, this clause, if it was intended to confer jurisdiction on the Chief Court in respect of the cases therein specified, is ultra vires. The statute has been declared by the Secretary of State for India in Council applicable to certain districts which are now included in the North-West Frontier Province (see Notification No. 2101, dated 2nd December 1870), but it has not been declared by such authority to be applicable to the Punjab. Clearly, therefore, under its provisions direct action could not be taken as regards persons, bodies or things in the Punjab. Equally clearly the Chief Commissioner of the North-West Frontier Province has no power of his own authority to confer jurisdiction extra-territorially on the Chief Court of the Punjab which is situate beyond the limits of the territories under his administration. And it was, no doubt, for this reason that the "draft" submitted by him to the Governor-General in Council (which said draft the Governor-General has been given no power to amend) contained no provision conferring such jurisdiction on the Chief Court. It was argued, however, that inasmuch as the draft regulation has been approved of by the Governor-General in Executive Council, the Chief Court must be taken by necessary implication, to have been given this extraordinary and extra-territorial jurisdiction, I confess I fail to follow the argument. The statute, under the provisions of which Regulation No. I of 1906 was made, does not apply to the Punjab. Its application is strictly and expressly limited to such places as the Secretary of State shall, from time to time, by resolution in Council, declare its provisions to be applicable, and it has not been so declared applicable to this province. Further, the powers of legislation possessed by the authority which made the Regulation (ie., to say, the Governor-General in Executive Council) are extremely circumscribed and very narrowly limited and in order to be intra vires and valid a legislative measure enacted by that authority must fall clearly within those powers. As I have endeavoured to show by the summary above set out, there is now no general power of legislation vested in the GovernorGeneral in Executive Council; and there is in this respect a very marked distinction between the powers possessed by the Governor-General in Legislative Council and the powers possessed by him in Executive Council. In this connection I might, for example, refer to Sections 3, 4 and 6 of another

statute (28 and 29 Victoria, C. 18). Under those provisions the Governor-General in Executive Council is, under certain conditions, empowered by order to alter the local limits of the jurisdiction of any High Court, but he can do so only by transferring any territory or place from the jurisdiction of one High Court to the jurisdiction of any other High Court. It is expressly added, however, that nothing in these provisions is to affect any power of the Governor-General in Council in Legislative meetings, the proviso making it clear that even in this particular matter the latter powers are far wider and more general than the powers conferred by the statute on the Governor-General in Executive Council.

In my opinion, then, the approval by the GovernorGeneral in Executive Council of the draft submitted to him under the provisions of 33 and 34 Victoria, C. 3, cannot give to the Chief Court a jurisdiction which it was not competent for the Chief Commissioner himself to give the Court, either by express provision in the draft or by necessary implication from its other provisions. Of course within the limits of the territories to which the statute (33 and 34 Victoria, C. 3) has been duly declared to be applicable, a draft approved by the Governor-General in Council has, under the provisions of the statute, like force of law as if it had been made by the Governor-General in Legislative Council, but I cannot read these words as meaning that the Governor-General in Executive Council can, by giving his approval to a draft made under the statute, legislate in respect of persons, bodies or things outside those limits as effectually as if the measure had been one passed by the Governor-General at a meeting of the Council for the purpose of making laws and regulations.

The learned Government Advocate contended that clause 87 A of the Regulation under consideration does not in reality affect the Punjab as it merely provides for the disposal of cases sent to the Chief Court from the North-West Frontier Province. But I venture to think that this argument is fallacious, for if the Chief Court has in reality no jurisdiction under the clause to entertain these cases, it is obvious that the clause in purporting to give such jurisdiction legislates in respect of a corporate body which is not subject to the Chief Commissioner of the North-West Frontier Province.

Summarising my argument, I am of opinion that the question referred to the Full Bench should be answered in the

negative for the following reasons:—

(1) Apart from certain special proceedings which are

otherwise duly provided for, the Chief Court, as a Court of appeal in Civil cases, has jurisdiction under its Constitutive Act only within the territories which are for the time being under the administration of the Lieutenant-Governor of the Punjab ;

(2) the cases transferred to the Chief Court for disposal by the Judicial Commissioner of the North-West Frontier Province are cases which under ordinary circumstances the Chief Court would admittedly have no jurisdiction to entertain and decide;

(3) there is in Regulation No. 1 of 1906 and in Regulation No. VII of 1901, no express provision to the effect that the Chief Court shall have, or be compelled to exercise, jurisdiction in such cases;

(4) if by necessary implication, clause 87 A (added to Regulation VII of 1901) can be taken to mean that jurisdiction in such cases is conferred on the Chief Court, and that the Chief Court is able in these cases to exercise such jurisdiction, the clause is in my opinion ultra vires inasmuch as it was made under the provisions of a statute which is not in force in, and has no applicability to, the territories for the time being under the administration of the Lieutenant-Governor of the Punjab.

The Chief Court's jurisdiction as a Court of Civil Appeal has been defined by its Constitutive Act, and in respect of certain special proceedings this jurisdiction has been enlarged by Acts emanating from the same authority which constituted the Court and defined its jurisdictional limits. It has no other jurisdiction as such Court of appeal, and I cannot agree that this jurisdiction can be extended extra-territorially by a Regulation made under a statute which is not in force in the Province in which the Court is situate and by an authority whose powers of legislation are exceptional, special and strictly limited under that statute.

I would therefore reply to the reference that the Chief Court has no jurisdiction to entertain and decide the cases referred to it by the Judicial Commissioner of the North-West Frontier Province.