Appeals Nos 346 to 363 of 1956
Appeals under Article 1321 of the Constitution of India from the Judgment and Order dated May 23 1956 of the Assam High Court in Civil Rules Nos 26 31 32 and 33 of 1956 and the Judgment and Order dated June 12 1956 of the said High Court in Civil Rules Nos 45 48 49 64 65 69 71 82 and 85 of 1956
section M Lahiri Advocate General of Assam AV Vishwanatha Sastri and Naunit Lal for the appellant in Appeals Nos 346 to 358
A V Vishwanatha Sastri Fakhruddin Ali Ahmed and Naunit Lal for the appellant in Appeal No 359
N C Chatterjee Fakhruddin Ali Ahmed and Naunit Lal for the appellants in Appeals Nos 360 and 361
Fakhruddin Ali Ahmed and Naunit Lal for the appellants in Appeals Nos 362 and 363 38 298 CK Daphtary Solicitor General of India B Chaudhuri section N Andley Rameshwar Nath
J B Dadachanji P L Vohra and section C Das for the respondents Nos 1  2 in Appeals Nos 346 and 359 and for respondent No 1 in Appeal No 347
P B Das B Chaudhuri section N Andley Remeshwar Nath J B Dadachanji P L Vohra and section C Das for respondent No 1 in Appeals Nos 349 350 352 353 355 356 358 360 361 and 362 for respondent No 5 in Appeals Nos 351 357 361 and 363 and for respondent No 6 in Appeal No 356
K P Gupta for respondent No 1 in Appeals Nos 357 and 363
January 31
The Judgment of the Court was delivered by DAS CJ
This judgment will dispose of the above noted 18 several Civil Appeals filed in this Court on certificate of fitness granted by the High Court of Assam under article 132 of the Constitution of India
The appeals Nos 346 347 348 349 and 359 are directed against the judgment of the said High Court passed on May 23 1956 in Civil Rules Nos 26 31 32 and 33 of 1956 issued by the said High Court on several petitions filed under article 226 of the Constitution
The rest of the appeals arise out of nine other Civil Rules issued in nine other similar writ applications which were disposed of by the judgment pronounced by the said High Court on June 12 1956 which simply followed its previous judgment dated May 23 1956
Each of these appeals raises the question of the vires of section 33 of the Assam Revenue Tribunal Transfer of Powers Act 1948 Assam Act No 4 of 1948 which is hereinafter referred to as  the 1948 Act  and of the  validity of the notification No Rex
1845239 issued by the Governor of Assam on July 5 1955 in exercise of powers conferred on him by sub a
3 of a 3 of the said Act appointing the Commissioner of Hills Division and Appeals as the appellate authority under the 1948 Act
All the appeals were accordingly heard together
299 In order to correctly appreciate the question raised before us it is necessary at this stage to refer to certain relevant statutory provisions and rules
In 1910 was passed the Eastern Bengal and Assam Excise Act 1910 EB aild Assam Act 1 of 1910 which is hereinafter called  the 1910 Act
 It is an Act to consolidate and amend the law in force in Eastern Bengal and Assam relating to the import export transport manufacture sale and possession of intoxicant liquor and intoxicant drug
Sub section 2 of section 3 as amended and adapted defines  Board  as meaning the Provincial Government of Assam
Chapter II of the Act deals with establishments and control
Section 8 makes provision for the appointment of officers and the conferment withdrawal and delegation of powers on them
Section 9 of the Act which is of importance was as follows 91 In all proceedings under this Act the Excise Commissioner and the Commissioner of the Division shall be subject to the control of the Board and the Collector shall be subject to the control of the Excise Commissioner and the Board and shall also in such cases and such matters as the Provincial Government may specify be subject to the control of the Commissioner of the Division
2Orders passed under this Act or under any rule made hereunder shall be appealable as follows in manner prescribed by such rules as the Provincial Government may make in this behalf ato the District Collector any order passed by a Collector other than the District Collector bto the Excise Comniissiouer or in such cases and such matters as the Provincial Government may specify to the Commissioner of the Divisions any order passed by the District Collector and cto the Board any order passed by the Excise Commissioner or by the Commissioner of a Division
3In cases not provided for by clauses a b and c of sub section 2 orders passed under this Act or under rules made hereunder shall be appealable in such cases and to such authorities as the Provincial Government may declare by rules made in this behalf
300 4 The Board the Excise Commissioner the Commissioner of the Division in such cases and such matters as the Provincial Government may specify or the District Collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he may think fit
Chapter III deals with import export and transport  of intoxicants
Manufacture possessionand sale of intoxicants are dealt with in Chapter IV
Section 18 prohibits the sale of intoxicants except under the authority and in accordance with the terms and conditions of a licence granted by the Collector or the Excise Commissioner in that behalf and makes certain provisions by way of exception to such prohibition
Chapter V provides for the imposition of duties and fees either generally or for any specified local area on any excisable article imported exported transported or manufactured under any licence granted under section 15 or section 16 of the Act and the method of levy of such duty
Chapter VI makes provision for the form and the conditions of grant of licences permits and passes
Section 28 of this chapter makes it obligatory on the Collector to take such measures as may best enable him to ascertain local public opinion in regard to the licensing and location of shops
Section 29 makes provision for the cancellation or suspension of licences permits or passes
Under section 32 no person to whom a licence has been granted shall have any claim to the renewal of such licence or any claim to compensation on the determination thereof Chapter VII lays down general provisions
Included in that chapter is section 36 which confers power on the Provincial Government to make rules for the purpose of carrying out the provisions of the Act or any other law for the time being in force relating to the Excise Revenue
Under sub section
2 els
g h and 1 of this section specific power is given to the Provincial Government to make rules regulating the periods for which and the persons to whom licences for the sale of any intoxicant may be granted prescribing the procedure to be followed and the matters to be ascertained before any 301 licence for such sale is granted and laying down in the case of any intoxicant the manner in which the duty on such article shall be levied
Prevention detection and investigation of offences are dealt with in chapter VIII
Chapter IX provides for penalties and procedure
In exercise of the powers conferred on it by section 36 the Provincial Government of Assam have made elaborate rules
Part IV of the rules deals with licences settlements and fees duration and number of licences location of shop ascertainment of local public opinion the procedure for settlement prohibition on grant of retail licence to certain persons grant of licence and so on and so forth
A perusal of the Act and rules will make it clear that no person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors such control and restriction being obviously necessary for the preservation of public health and morals and to raise revenue
Then came the Government of India Act 1935
It was brought into operation on April I 1937
Section 296 of the Act on which the main controversy in these appeals turns before its adaptation ran as follows 296 1 No member of the Federal or a Provincial Legislature shall be a member of any tribunal in British India having jurisdiction to entertain appeals or revise decisions in revenue cases
2If in any Province an such jurisdiction as aforesaid was immediately before the commencement of Part III of this Act vested in the Local Government the Governor shall constitute a tribunal consisting of such person or persons as he exercising his individual judgment may think fit to exercise the same jurisdiction until other provision in that behalf is made by Act of the Provincial Legislature
3There shall be paid to the members of any tribunal constituted under the last preceding subsection such salaries and allowances as the Governor exercising his individual judgment may determine and 302 those salaries and allowances shall be charged on the revenues of the Province
It will be recalled that under a 9 of the 1910 Act the Board which by a 32 thereof meant the Provincial Government was the final appellate authority
The Provincial Government was composed of ministers who were necessarily members of the Legislature
In fact in Assam the ministers used to function as the Board and exercise the final appellate authority under section 9 of the 1910 Act
The policy of Parliament was that such practice must be discontinued and hence it introduced a prohibition against it by sub section
1 of section 296 quoted above The intention of Parliament was not however to do away with the right of final appeal but to preserve it
The ban imposed by sub section
1 prevented the Board meaning the Provincial Government from functioning as the final appellate authority under the 1910 Act
Therefore some provision had to be made to set up some other body to exercise that appellate power
Accordingly Parliament by sub section
2 of section 296 empowered the Governor of those provinces where the appellate authority was prior to the commencement of that Act vested in the Provincial Government to constitute a tribunal to exercise the same jurisdiction
The tribunal so constituted by the Governor was to exercise jurisdiction until other provision in that behalf was made by the Legislature
In exercise of powers conferred on him by sub section
2 of that section the Governor of Assam constituted a single member Tribunal called at first the Board and later as the Assam Revenue Tribunal
From time to time the personnel of this tribunal was charged by notifications issued in that behalf
The Assam Revenue Tribunal so constituted by the Governor functioned until 1946 when the Assam Revenue Tribunal Act 1946 Assam Act II of 1946 hereinafter referred to as  the 1946 Act  was passed
Sub section 1 of a 3 of the 1946 Act provided that the Provincial Government should constitute a tribunal to be called the Assam Revenue Tribunal consisting of a President and two members
Sub section 2 303 fixed their period of service as five years
The qualifi cations of the President and the members were prescribed by sub section
3 and provision was made by sub section
4 for filling up of vacancies
Sub section 5 provided that the president and the non official members should be paid such salary as might be prescribed ie prescribed by rules made under the Act
Powers and functions of the tribunal were defined by Ps 5 and 6 of the Act
Sub section 2 of section 5 conferred on the tribunal jurisdiction to entertain appeals and revise the decisions in all revenue cases arising under the provisions of the enactments specified in the schedule in which such jurisdiction was vested in the Provincial Government immediately before the Act
The schedule set out nine enactments
Section 7 prohibited any further appeal or revision against any order passed by the tribunal
Section 8 however conferred on the tribunal power to review its own orders
Section 9 abolished the Assam Revenue Tribunal constituted by the Governor and provided that all appeals and applications for revision pending before the said tribunal should be deemed to have been instituted before the tribunal constituted under this Act and directed the same to be decided by this tribunal as if they were instituted before it
In exercise of powers so conferred on it the Provincial Government constituted a three member tribunal to exercise the final appellate authority
Thus broadly speaking under the 1910 Act up to March 31 1937 appeals lay under section 9 from the Deputy Commissioner to the Excise Commissioner and from the latter to the Board that is to say the Provincial Government
On and from April 1 1937 when the Government of India Act 1935 came into force up to June 1946 when the 1946 Act was passed appeals lay from the Deputy Commissioner to the Excise Commissioner and from the latter to the one member tribunal constituted by the Governor of Assam and after the enactment of the 1946 Act Which abolished the Governor s tribunal appeals 1 say from the Deputy Commissioner to the Excise Commissioner and from 304 the latter to the three member tribunal constituted under the 1946 Act
On April 5 1948 a High Court was established for the province of Assam
On April 6 1948 the Assam Revenue Tribunal Transfer of Powers Act 1948 Assam IV of 1948 received the assent of the Governor of Assam
It was published in the official gazette on April 8 1948 and was brought into force on the same day by a notification issued by the Provincial Government under a 1 3
Section 3 of this 1948 Act runs as follows 3 1 Subject to the provisions of sub section 3 of this section the Assam High Court shall exercise such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediately before the first day of April 1937 under any law for the time being in force
2in particular and without prejudice to the generality of the foregoing provision the Assam High Court shall have jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in Schedule A in which such jurisdiction was vested in the Provincial Government immediately before the first day of April 1937 and 3Without prejudice to the foregoing provisions the authority appointed by general or special order of the Provincial Government shall exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in Schedule B as is exercised now by the Revenue Tribunal and was vested in the Provincial Government before the first day of April 1937 and 4The Assam High Court and the authority appointed by Provincial Government shall have jurisdiction to entertain appeals and revise decisions within the field of jurisdiction respectively transferred by this Act to the Assam High Court and the authority appointed by the Provincial Government in oases specified in section 7 2
 The drafting of this section is indeed curious for while sub a
1 starts with the words of reservation 305 namely subject to the provisions of sub section
3 of this section  and sub section
2 is without prejudice to the generality of sub section
1 sub section
3 is expressed to be without prejudice to the foregoing provisions that is to say the provisions of sub sections
1 and 2
Section 5 prohibits any appeal or revision against any orders passed by the Assam High Court or the authority referred to in section 3 3 in exercise of its powers of appeal or revision under the Act
Section 6 confers power on the Assam High Court or the authority referred to in section 3 3 to review its own decision or order under certain conditions
Section 7 provides for the abolition of the Assam Revenue Tribunal and the disposal of pending cases before the same
It runs as follows 7 1 From the date on which this Act comes into force The Assam Revenue Tribunal shall be deemed to have been abolished and the President and members thereof shall be deemed to have relinquished their posts as President and members of the Tribunal
2The appeals and applications for revision pending before the said Tribunal on the date on which this Act comes into force shall be deemed to have been instituted before the Assam High Court or the authority referred to in section 3 3 according to the field of jurisdiction transferred by this Act to the High Court and the aforesaid authority respectively and shall be decided as if they were instituted before the Assam High Court or the authority as the case may be
 It is difficult to appreciate the propriety of the use of the word deemed  in sub section
1 of section 7 and this vagueness has given rise to some argument before us which will be dealt with later on
Section 8 confers power on the Assam High Court to make rules by notification in the official gazette consistent with the provisions of this Act for carrying out the purpose of this Act and like power is conferred on the Provincial Government to make rules for the guidance of the authority appointed by it as contemplated by section 3 3
The Act contains two schedules
Schedule A contains five enactments namely the first four and the ninth enactment referred to in the schedule of the 39 306 1946 Act and sch
B contains the remaining four enactments of the schedule to the 1946 Act
Under section 3 the appeals and revisions arising out of the enactments specified in sch
A are to be dealt with by the High Court and those arising out of the enactments specified in sch
B are to be dealt with by the authority appointed by general or special order of the Provincial Government
In exercise of powers conferred on it by section 3 3 of the 1948 Act the Provincial Government from time to time issued notifications appointing persons to exercise the power of the appellate authority
When the Act came into force on April 8 1948 the Revenue Secratary was appointed the appellate authority
Curiously enough however on June 15 1948 the Minister of Excise to the Government of Assam was appointed as the appellate authority
This was promptly challenged as a flagrant violation of the provisions of section 296 1 of the Government of India Act 1935 and was ultimately declared to be invalid by the Assam High Court
Thereafter fresh notifications were issued on September 15 1952 and May 11 1955 each superseding the immediately previous notification
On June 2 1955 a new post called the Commissioner of Hills Divisions and Appeals was created and Notification No Rex
1845239 was issued on July 5 1955 whereby the Commissioner of Hills Divisions and Appeals was appointed as the appellate authority after cancellation of the preceding notification dated the May 11 1955
In 1955 arose the question of
granting licence and settlements of country spirit shops in different areas for the year 1956 57
Rival claimants submitted their respective applications
The Deputy Commissioner on the advice of the Advisory Committee made orders for settlements in favour of certain persons
Appeals were promptly preferred by the disappointed claimants to the Excise Commissioner
The Excise Commissioner in some cases upheld the orders of the Deputy Commissioner and in some cases reversed his orders and directed licence to issue to some other claimants
The party dissatisfied with the order of the Excise Commissioner went up on further appeal to the appellate 305 namely subject to the provisions of sub section
3 of this section  and sub section
2 is without prejudice to the generality of sub section
1 sub section
3 is expressed to be without prejudice to the foregoing provisions that is to say the provisions of sub sections
1 and 2
Section 5 prohibits any appeal or revision against any orders passed by the Assam High Court or the authority referred to in section 3 3 in exercise of its powers of appeal or revision under the Act
Section 6 confers power on the Assam High Court or the authority referred to in section 3 3 to review its own decision or order under certain conditions
Section 7 provides for the abolition of the Assam Revenue Tribunal and the disposal of pending cases before the same
It runs as follows 7 1 From the date on which this Act comes into force The Assam Revenue Tribunal shall be deemed to have been abolished and the President and members thereof shall be deemed to have relinquished their posts as President and members of the Tribunal
2The appeals and applications for revision pending before the said Tribunal on the date on which this Act comes into force shall be deemed to have been instituted before the Assam High Court or the authority referred to in section 3 3 according to the field of jurisdiction transferred by this Act to the High Court and the aforesaid authority respectively and shall be decided as if they were instituted before the Assam High Court or the authority as the case may be
 It is difficult to appreciate the propriety of the use of the word deemed  in sub section
1 of section 7 and this vagueness has given rise to some argument before us which will be dealt with later on
Section 8 confers power on the Assam High Court to make rules by notification in the official gazette consistent with the provisions of this Act for carrying out the purpose of this Act and like power is conferred on the Provincial Government to make rules for the guidance of the authority appointed by it as contemplated by section 3 3
The Act contains two schedules
Schedule A contains five enactments namely the first four and the ninth enactment referred to in the schedule of the 39 306 1946 Act and sch
B contains the remaining four enactments of the schedule to the 1946 Act
Under section 3 the Is appeals and revisions arising out of the enactments specified in sch
A are to be dealt with by the High Court and those arising out of the enactments specified in sch
B are to be dealt with by the authority appointed by general or special order of the Provincial Government
In exercise of powers conferred on it by section 3 3 of the 1948 Act the Provincial Government from time to time issued notifications appointing persons to exercise the power of the appellate authority
When the Act came into force on April 8 1948 the Revenue Secretary was appointed the appellate authority
Curiously enough however on June 15 1948 the Minister of Excise to the Government of Assam was appointed as the appellate authority
This was promptly challenged as a flagrant violation of the provisions of section 296 1 of the Government of India Act 1935 and was ultimately declared to be invalid by the Assam High Court
Thereafter fresh notifications were issued on September 15 1952 and May 11 1955 each superseding the immediately previous notification
On June 2 1955 a new post called the Commissioner of Hills Divisions and Appeals was created and Notification No Rex
1845239 was issued on July 5 1955 whereby the Commissioner of Hills Divisions and Appeals was appointed as the appellate authority after cancellation of the preceding notification dated the May 11 1955
In 1955 arose the question of
granting licence and settlements of country spirit shops in different areas for the year 1956 57
Rival claimants submitted their respective applications
The Deputy Commissioner on the advice of the Advisory Committee made orders for settlements in favour of certain persons
Appeals were promptly preferred by the disappointed claimants to the Excise Commissioner
The Excise Commissioner in some cases upheld the orders of the Deputy Commissioner and in some cases reversed his orders and directed licence to issue to some other claimants
The party dissatisfied with the order of the Excise Commissioner went up on further appeal to the appellate 307 authority constituted by the last mentioned Notification of the Provincial Government
In some cases the appellate authority upheld the orders of the Excise  Commissioner in some cases it reversed the same and restored the orders of the Deputy Commissioner and in some cases it reversed the orders of the Excise Commissioner and did not restore the orders of the Deputy Commissioner but made orders for the grant of licences to third parties who were also claimants for such licences
Parties dissatisfied with the order made by the appellate authority filed petitions under article 226 of the Constitution of India for appropriate writs quashing the orders of the Appellate Authority and the several Civil Rules herein before referred to were issued to the respondents to show cause why the write prayed for should not be issued
Civil Rules Nos 26 31 32 and 33 all of 1956 were taken up for hearing together by the High Court
At the hearing before the High Court three points were raised on behalf of the petitioners namely 1 That section 33 of the 1948 Act was bad because a it was repugnant to section 296 2 and b it conferred essential legislative power on the Provincial Government and amounted to excessive delegation of legislative power 2 that Notification No Rex
1845239 issued on July 5 1955 was repugnant to the whole scheme and policy of section 9 of the 1910 Act and 3 that assuming that section 33 of the 1948 Act was valid the power of the Provincial Government to appoint an appellate authority came to an end once the authority had been appointed
On the first point the High Court took the view that section 2962 placed an obligation on the Provincial Legislature to constitute a tribunal but the Provincial Legislature failed to carry out this positive mandate and left the constitution of the appellate authority to the Provincial Government in violation of the obligation enjoined upon it by section 2962
This reading of a 2962 later on was further emphasized and appears to have been the central theme running throughout the judgment of the High Court
The High Court also 308 took the view that apart from section 2962 section 33 of the 1948 Act constituted an excessive delegation of legislative power conferred on the Provincial Legislature by sections 99 and 100 of the Government of India Act 1935 read with entries 2 31 and 40 of list II of the Seventh schedule thereto
The High Court also upheld the petitioner s contention that the Notification dated July 5 1955 was repugnant to section 9 of the 1910 Act
In the view the High Court took on the first two points it did not express any opinion on the third point
In the result the High Court held that section 33 of the 1948 Act and the said Notification were void and  that the appellate authority which heard the revenue appeals had not been validly or lawfully constituted and that therefore its decisions were nullities
The High Court accordingly issued appropriate writs quashing the said orders
The other Civil Rule came up for hearing later on and were disposed of by another judgment of the High Court pronounced on June 12 1956 which simply followed its earlier decision and accordingly the High Court issued similar writs quashing the said orders
The State of Assam as well as some of the parties have come up on appeal with the requisite certificate from the High Court as herein before mentioned
The main attack on the part of the State of Assam was directed against the High Court s view that section 33 of the 1948 Act was void on the two grounds referred to in the judgment
As already indicated the principal theme running throughout that judgment was that section 2962 of the Government of India Act 1935 had placed an obligation on the Provincial Legislature to constitute a tribunal
We are unable to accept this reading of that section
The purpose of section 296 was to deal with courts of appeal in revenue cases
By sub section
1 it imposed a ban on the members of the Federal or Provincial Legislature and prohibited them from becoming members of any tribunal in British India having jurisdiction to entertain appeals or revise decisions in revenue cases
It appears that in some of the provinces such jurisdiction was immediately before the commencement of Part III of the Government of 309 India Act vested in the local government which in effect meant ministers who of necessity had to be members of the Legislature
Having imposed the ban and at the same time intending that the right of final appeal should be maintained Parliament had to make provision for preserving this right of final appeal in those provinces in which such jurisdiction was immediately before the commencement of Part III of the Act vested in the local Government
Accordingly Parliament authorized the Governor to constitute a tribunal consisting of such person or persons as he exercising his individual judgment might think fit to exercise the same jurisdiction
In sections 99 and 100 read with the several entries in List II Parliament had already authorised the Provincial Legislatures to make laws with respect to the jurisdiction and powers of all courts except the Federal Court entry 2 Intoxicating and Narcotic Drugs entry 31 and Duties of Excise Entry 40
Evidently Parliament did not intend that the power to constitute a tribunal so conferred on Provincial Legislatures of those provinces in which appellate jurisdiction was at the date of that Act vested in the local government should be affected or whittled down by the constitution of a tribunal by the Governor under sub section
2 and accordingly it provided that the tribunal constituted by the Governor to exercise the appellate jurisdiction should continue 64 until other provision in that behalf  was made by the Act of the Provincial Legislature
The concluding clause in the section clearly indicated the point of time up to which the Governor s tribunal was to function
The purpose of the section was clearly not to impose any restriction on the legislative power conferred on the Provincial Legislatures by sections 99 and 100 read with the aforesaid entries in list II of the Seventh schedule
Sub section 2 of section 296 imposed no compulsion whatever on the Provincial Legislature to make  other provision in that behalf 
Indeed no provision in that behalf was made by the Assam Legislature until it enacted the 1946 Act
We are unable with great respect to read into section 2962 any mandate requiring the Provincial Legislature to make 310 any provision
On the contrary it was left entirely to the Provincial Legislature in the provinces referred to therein to make or not to make any law under the entries referred to above and the only effective provision
of that sub section was to authorise the Governor to constitute a tribunal and to fix a terminus a quo up to which the Governor s tribunal could continue to function
Learned counsel appearing for the respondents have not sought to support the extreme construction put upon section 2962 by the High Court
They have however pointed out that the Governor s tribunal was to continue until other provision  in that behalf  was made by the Provincial Legislature and contended that some meaning must be given to the words in that behalf
They argued that those words related back and referred to the constitution of the tribunal by the Governor that so read the meaning of the subsection plainly was that the Governor s tribunal was to continue to function until the Provincial Legislate are made other provision for the constitution of a tribunal of its own
They conceded that the power of the Provincial Legislature to constitute a tribunal was not derived from section 296 2 but was conferred on it by sections 99 and 100 read with the relevant entries in List 11 of the Seventh schedule but they contended that the provision that until in exercise of those powers the Provincial Legislature constituted a tribunal the Governors tribunal would continue clearly indicated that the Governor s tribunal was to be a temporary body and this circumstance impliedly imposed on the Provincial Legislature an obligation requiring it to exercise its power only for constituting a tribunal
We are unable to accept this contention
The Governor was empowered to constitute a tribunal to exercise the same jurisdiction as was immediately before the commencement of Part III of the Government of India Act 1935 vested in the Provincial Government
The tribunal so constituted by the Governor was to function until other provision was made in that behalf
The words in that behalf need not necessarily relate back to the constitution of a tribunal
Learned counsel 311 for the appellants suggest that the words other provision in that behalf may grammatically refer to what preceded immediately namely to the exercise of the same jurisdiction
In other words they contend that the sub section means that the Governor s tribunal would continue to exercise the jurisdiction until other provision in that behalf that is to say other provision for or with respect to the exercise of the same jurisdiction was made by Act of the Provincial Legislature
It is pointed out that the construction suggested by learned counsel for the respondents would lead us to the conclusion that the intendedly of the concluding part of the Sub section was to impose a fetter on the legislative powers of the Provincial Legislatures of those provinces referred to in the subsection so that they could constitute a tribunal if they ever wanted to exercise their legislative powers under the entries mentioned above but could make no other provision with respect to the exercise of such jurisdiction as was being exercised by the Provincial Government at the commencement of the Government of India Act 1935
On this construction the Legislatures of those provinces only would be prevented from abolishing the right of final appeal while other provinces in which the appellate jurisdiction was not at the date of the commencement of Part III of the Government of India Act 1935 being exercised by the local government would be free to abolish the right of final appeal
A construction which leads to such a result should they contend be avoided if possible
The criticisms advanced against the construction put upon section 296 2 by the High Court which has been pressed upon us in a slightly modified form as hereinbelow mentioned do not appear to us to be wholly untenable or devoid of substance
We need not however base our decision on those considerations for on a plain reading of section 296 2 its purpose clearly was to authorize the Governors of certain provinces to constitute a tribunal and to prescribe a time limit up to which the tribunal so constituted by him was to exercise the appellate jurisdiction
Beyond this the sub section was not intended to go It was not concerned with the legislative 312 powers of the Provincial Legislatures which had already been prescribed by sections 99 and 100 read with List 11 of the Seventh schedule
It imposed no compulsion on the Provincial Legislatures to make any law or to impose any restriction whatever on the legislative powers of the Provincial Legislatures
The critical concluding clause in sub section
2 only fixed a terminus a quo and did nothing further
Even assuming that the construction suggested by learned counsel for the respondents were to be accepted namely that section 296 2 imposed an obligation on the Provincial Legislature to constitute a tribunal we take the view for reasons to be presently stated that obligation has in substance been fully discharged by section 33 of the 1948 Act and this leads us to a consideration of the second point founded on the doctrine of delegation of power
It was said that apart from the questions whether section 296 2 contained a mandate and whether the Provincial Legislature had obeyed the same section 3 3 of the 1948 Act must be struck down on the ground that the Provincial Legislature had not exercised its essential legislative functions under sections 99 and 100 read with the aforesaid entries but had delegated it to the Provincial Government without laying down any policy or principle to guide the latter in exercising the same
Reference was made to the 1946 Act and it was urged that Act prima facie carried out the obligations placed upon the legislature by section 296 2 and that apart from that question that Act laid down the policy and principle namely the number of members of the tribunal their qualifications functions and term of their office and remuneration and that the only authority which the legislature by that Act delegated to the Provincial Government was to select the personnel of the tribunal
In comparison it was pointed out that the 1948 Act did not lay down any legislative policy or principle by which the Provincial Government was to be guided in the exercise of the delegated power
By doing so the Provincial Legislature had in effect abdicated its function and made the Provincial Government a parallel legislative authority to constitute a 313 tribunal
In short as stated by the High Court the legislature told the Provincial Government  you appoint the tribunal as and when you like instead of my doing so
 The legislature it was contended could not in this way part with its essential legislative functions
Elaborate arguments were advanced before us as to the permissible limit of delegation of legislative power and reference was made to numerous authorities English American and Indian ranging from Burke s case 1 to In be 2 and finally to Raj Narain Singh vs The Chairman Patna Administration Committee3
In the view we have taken of the true meaning and effect of the 1948 Act it is however not necessary for us to embark upon a discussion on the baffling subject of delegation of legislative powers and the permissible limits thereof as to which there is considerable scope for divergence of opinion
In order to correctly interpret the 1948 Act one has to have a clear conception of the circumstances in which and the purpose for which that statute came to be enacted
It will be recalled that there was the 1910 Act dealing with the excise law in force in Eastern Bengal and Assam
That Act set out a hierarchy of appellate authority as will appear from section 92 of that Act hereinbelow quoted
Then came the Government of India Act 1935 section 2962 of which authorised the Governor to constitute a tribunal to exercise the appellate jurisdiction that was immediately before the commencement of that Act being exercised by the Provincial Government
The Governor s tribunal was to exercise such jurisdiction until the Provincial Legislature made other provision with respect thereto
By the 1946 Act the Assam Legislature made other provision for the exercise of the final appellate powers by the tribunal constituted by the Provincial Government in exercise of the powers conferred on it by section 3 of that Act
Jurisdiction was conferred on the Tribunal to entertain appeals and revise decisions in all revenue cases arising under the 1 3  40 2
T951 section C R 747
314 provisions of the nine enactments specified in the schedule thereto and in all cases which stood transferred to the Tribunal from the Assam Revenue Tribunal constituted by the Governor as specified in section 9
The High Court of Assam had just been established on April 5 1948
The purpose of the 1948 Act as recited in its preamble was to transfer the power and jurisdiction exercised by the revenue tribunal to the Assam High Court and to an authority appointed by general or special order of the Provincial Government
Section 3 which has been quoted above constituted the Assam High Court as the appellate authority for exercising such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediately before April 1 1937 and in particular in all revenue cases arising under the provisions of the enactments specified in sch
A to the Act
By Sub section
3 of section 3 power was conferred on the Authority appointed by general or special order of the Provincial Government to exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of enactments specified in sch
B to the Act as was then exercised by the revenue tribunal and was vested in the Provincial Government before April 1 1937
Turning to the schedules to the Act it will be noticed that the first four and the ninth item of the schedule to the 1946 Act have been set out in sch
A to the 1948 Act and items 5 to 8 of the schedule to the 1946 Act have been assigned to sch
B to the 1948 Act
By section 7 of the 1948 Act the Assam Revenue Tribunal is to be deemed to have been abolished and the President and the members thereof are to be deemed to have relinquished their posts as President and members of the tribunal
Sub section 2 of that section transfers the appeals and applications for revision pending before the Assam Revenue Tribunal to the Assam High Court or the authority referred to in section 33 according to the field of jurisdiction transferred by the 1948 Act to the High Court and the aforesaid authority respectively and directs that the High Court and the aforesaid authority should decide such appeals 315 and applications for revision as if they were instituted before the Assam High Court or the authority as the case may be
Section 8 confers rule making power on amongst others the Provincial Government for the guidance of the Authority appointed by it as contemplated by section 33
Reading the relevant provisions of the Act it is quite clear that the Assam Legislature had applied its mind and determined that the Assam Revenue Tribunal constituted under the 1946 Act should be abolished that the Legislature applied its mind and further determined that the jurisdiction and powers of the Assam Revenue Tribunal should be distributed between two bodies namely those specified in schedule A should go to the High Court and those specified in schedule B to the Authority referred to in section 33
At one stage of the arguments an endeavour was made to find out a rational basis of the distribution of the appellate powers between the two bodies
It was stated that the appeals or revisions in which Government was interested were sent to the High Court
A reference to the enactments in the schedules does not bear out this basis of distribution for the Government may quite clearly be interested in appeals and revisions arising under the Assam Forest Regulation which is assigned to schedule B as item iii thereof
It was also said that the appeals and revisions with respect to revenue matters have been assigned to the High Court
But some of the enactments specified in sch
B relate to revenue
It is therefore futile to try and ascertain a logical basis for the distribution of the appellate authority between the two bodies
Nor do we think that it is necessary at all to divine any rational basis for such distribution
It is enough to say that the legislature in its wisdom and in the interest of smooth administration has thought fit to assign some of the appellate and revisional powers exercised by the Assam Revenue Tribunal to the High Court and the rest to the Authority referred to in section 33
Two alternative arguments have been advanced before us on the assumption that the Assam Legislature was labouring under some mistake or misapprehension
316 In the first place it was urged that the legislature was under the mistaken belief that the tribunal set up under the 1946 Act though abolished for the purpose of that Act remained nevertheless as an existing tribunal for the purpose of the 1948 Act
This argument is founded on the inartistic use of the word deemed in section 71 of the 1948 Act
But this argument cannot hold good for a moment in view of sub section
2 of that section whereby the appeals and applications for revision pending before the Assam Revenue Tribunal on and from the date of the 1948 Act were to be deemed to have been instituted before the Assam High Court or the Authority referred to in section 33 and the Assam High Court or the said Authority was directed to decide such appeals and applications as if they were instituted before the Assam High Court or the Authority as the case might be
This shows that the Assam High Court and the Authority are therefore bodies quite different from the old Assam Revenue Tribunal
Therefore it cannot possibly be argued that the old 1946 Act tribunal notwithstanding its abolition continued to exist for the purpose of the 1948 Act for sub section 2 of section 7 quite clearly authorised the High Court and the Authority referred to in section 33 but not the 1946 Act Tribunal to decide the appeals and applications for revision which were pending before the old Assam Revenue Tribunal
The alternative argument was that the legislature in enacting the 1948 Act proceeded on the basis that the power to set up a tribunal resided in the Provincial Government and not in the legislature and that there fore the 1948 Act did not purport to be an Act for constituting an appellate tribunal but that the purpose of the Act was only to distribute the appellate powers as recited in its preamble
It was argued that by this Act the legislature did not itself constitute a tribunal nor authorise the Provincial Government to set up a tribunal
It was further contended that assuming that the legislature had authorised the Provincial Government to set up a tribunal then there had been an excess of delegation of legislative power
We are unable to accept the correctness of this alternative 317 argument
There is no particular form of expression that is necessary for constituting a tribunal
The Assam High Court was undoubtedly an existing tribunal but apart from section 31 and 2 that High Court was not an appellate authority having jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in schedule A to the Act
It is the 1948 Act which by sub sections
1 and 2 of section 3 constitutes the Assam High Court as the appellate authority for exercising such Jurisdiction and this it has done by simply saying that the Assam High Court shall exercise such jurisdiction or the Assam High Court shall have jurisdiction to entertain appeals and to revise decisions
If the language of sub sections
1 and 2 of section 3 is sufficient to constitute the Assam High Court as an appellate authority why does not the language of sub section
3 of the same section amount to the constitution of the Authority referred to therein as the appellate authority to exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in schedule B thereto  The sub section has undoubtedly been very inartistically and inaptly drafted
The intention of the framers of the sub section however appears to be quite clear that the legislature itself applied its mind and constituted an appellate authority
If that were not so then after the abolition of the Assam Revenue Tribunal which took effect on the date of the Act there would result a vacuum as regards the exercise of jurisdiction to entertain appeals and revisions under the provisions of the enactments specified in schedule B and there would be no authority to deal with the pending appeals and revisions or future appeals and revisions arising under those several enactments
It is further to be noticed that the sub section uses the word appointed and not constituted
The word appointed is inappropriate to signify the constitution of any authority but is quite proper to signify the selection of the personnel of the already constituted authority to exercise the appellate powers of that authority
In order to give a rational meaning to the 318 whole Act one is driven to the conclusion that by subs
3 the legislature itself constituted the authority and only left it to the Provincial Government to appoint persons to man that authority and to perform the duties of that authority
It appears to be the usual practice of Indian legislatures to constitute authorities in this manner
In support of such legislative practice reference may be made to the following enactments 1The Act No IV of 1924 Section 2 2
The Act V of 1923Section 20 3
Bengal Board of Revenue Act 1913 Sections 3 and 4 4
The Act IV of 1939Section 64 5
The Act LXIII of 1948Section 107
Schedule Districts Act XIV of 1874 Section 6 7
Essential Supplies Temporary Powers Act1946 Section 4 8
Assam Act XVII of 1947 Sales Tax ActSection 30
Bombay Act V of 1946 Sales Tax ActSection 21
Bengal Raw Jute Taxation Act XI of 1941Section 21
Extra Provincial Jurisdiction Act 1947 Central Act XLVII of 1947 Sections 3 and 4 12
Garo Hills Regulation I of 1882 Section 6 13
Assam Requisition and Control of Vehicles Act Act XXXII of 1950 section 9
Assam Adhiars Protection and Regulation Act 1948 Act XII of 1948 Section 9 15
Assam Forest Product Acquisition Act XXXI of 1950 Section 7
Appointed does not necessarily mean already appointed
It may also mean to be appointed at any future time
When a person is appointed by the Provincial Government after the date of the Act he may immediately thereafter be well described as a person appointed by the Provincial Government
319 It is next suggested that even if the legislature itself constituted the authority it nevertheless delegated essential legislative functions with respect to the appointment of members for the legislature had not laid down any policy or principle as to the number qualification remuneration or period of service of persons to be appointed to perform the duties of the tribunal
We do not think that there is any force in this contention
Section 2962 of the Government of India Act 1935 itself which authorised the Governor to constitute a tribunal did not indicate any qualification for the eligibility of the persons to be appointed as members of the tribunal
It is clear that the tribunal was to sit in appeal over the decision of the Excise Commissioner and that by itself gives some indication that the person or persons to be appointed to the tribunal should have the requisite capacity and competency to deal with appeals from such high officials
We do not consider that there has been an excessive dele gation of legislative power
It was finally urged that the intention of the legislature  in enacting the impugned Act was to give effect inter alia to the provisions of the Excise Act and that there was nothing in any portion of the impugned Act to indicate that the intention of the legislature was to effect the repeal of the provisions of section 9 of the 1910 Act
There was no question it was said of any implied repeal of any portion of section 9
This argument overlooks the fact that in Assam the Board meant the Provincial Government
Section 296 1 debarred the members of the legislature which included the ministers from exercising any appellate authority and section 296 2 authorised the Governor to constitute a tribunal to exercise the appellate jurisdiction which was being exercised by the Provincial Government immediately before the commencement of the Government of India Act 1935
Therefore the jurisdiction of the Board meaning the Provincial Government under a 9 of the 1910 Act was taken away and vested first in the Governor s tribunal and there after in the Assam Revenue Tribunal constituted under the 1946 Act and this appellate jurisdiction was 320 by the 1948 Act distributed between the Assam High Court and the authority referred to in section 3 3 of the last mentioned Act
There is in the circumstances nothing in the impugned Act which is repugnant to section 9 2 as modified by s296 of the Government of India Act 1935
It was next pointed out that the Excise Commissioner and the Commissioner of a Division had almost co ordinate powers under the scheme of section 9 that the powers of the Commissioner of a Division were more restricted as they related only to matters specified by the Provincial Government and that there was no provision in section 9 for any appeal to the Commissioner of a Division against the orders of the Excise Commissioner
This is true enough but the Board meaning the Provincial Government bad been superseded by section 2962 of the Government of India Act 1935 whereby the Assam Revenue Tribunal was constituted by the Governor as the authority to entertain appeals and revisions from the Excise Commissioner
The Governor s tribunal was replaced by the Assam Revenue Tribunal constituted under the 1946 Act which in its turn was replaced by two authorities namely the Assam High Court and the Authority referred to in section 33 of the 1948 Act
We see no impropriety in the Commissioner of Hills Division and Appeals assuming that he is the same as the Commissioner of a Division being appointed as the authority to entertain appeals from the Excise Commissioner
It is true that appeal from the decision of the Commissioner of a Division in matters specified by the Provincial Government lay initially to the Board and thereafter to the Governor s tribunal and then to the Assam Revenue Tribunal and finally to the tribunal referred to in section 3 3 of the 1948 Act
The possibility of an appeal from the decision of the Com missioner of a Division coming up before the authority referred to in section 3 3 cannot in our opinion affect the validity of the Notification whereby the Commissioner of Hills Division and Appeals was appointed as the authority contemplated by section 3 3
At the highest it may be that the Commissioner of Hills Division and Appeals exercising the powers of the authority referred 321 to under section 3 3 may be disqualified from entertaining appeals from his own order but that does not affect his power to entertain appeals from the Excise Commissioner
Even that situation will not arise for under r 341 of the Excise Rules appeals arising out of cases decided in the excluded areas by the Commissioner of Hills Division and reseals would go to the Governor
In any event the drop not appear to be any repugnancy between the Notification and the so called principle or policy of a 9 of the 1910 Act as regards the hearing of appeals from the decisions of the Excise Commissioner
In our opinion there is no substance in this point
No other point of law or fact has been urged before us
In our opinion for reasons stated above the judgments of the HIgh Court appealed from should be set aside and those of the appellate authority should be restored
All the appeals are accordingly allowed
The controversy it seems to us arose by reason of the inartistic drafting of the relevant enactment and in the premises although the State of Assamhas succeeded in the appeals filed by it we make no order as to costs in its favour in any of the appeals filed by it
The successful appellants in the other appeals will get the costs of their respective appeals from the respondents in those appeals including the State of Assam
Appeals allowed


Summary:
These appeals by the State of Assam and some other parties from a number of judgments of the High Court of Assam passed under article 226 of the Constitution quashing certain orders of the Appellate Authority appointed by the Governor of Assam by a Notification under section 33 of the Assam Revenue Tribunal Transfer of Powers Act 1948 dated July 5 1955 raised the common question of the vires of that section and the validity of the Notification by which the Commissioner of Hills Division and Appeals was appointed the Appellate Authority
in 1955 rival claimants applied for the grant of licenses and settlement of country spirit shops for the year 1956 57 and parties dissatisfied with the orders of the Deputy Commissioner and those of the 296 Excise Commissioner in appeals therefrom appealed to the Appellate Authority whose orders were as stated quashed by the High Court
under the Eastern Bengal and Assam Excise Act 1910 the Board which was the final appellate authority meant the Provincial Government and ministers who were necessarily members of the Legislature functioned as the Board
Section 296 of the Government of India Act 1935 by sub section
1 put it a ban on the members of the Legislature from functioning as the Board and by sub section
2 empowered the Governor to constitute a tribunal to exercise the same jurisdiction until the Legislature made other provisions in that behalf
The Government of Assam constituted a single member tribunal called at first the Board and later on the Assam Revenue Tribunal which functioned till the passing of the Assam Revenue Tribunal Act 1946 empowering the Provincial Government to constitute the Assam Revenue Tribunal consisting of three members
In 1948 the High Court of Assam was established and shortly thereafter was passed the Assam Revenue Tribunal Transfer of Powers Act 1948 abolishing the Assam Revenue Tribunal and conferring its jurisdiction on the High Court and the authority to be appointed by the Provincial Government under section 33 Of the Act
The High Court in disposing of the writ petitions took the view that section 2962 Of the Government of India Act placed a mandate on the Provincial Legislature to constitute the tribunal which
it failed to do and that section 33 of the Assam Revenue Tribunal Transfer of Powers Act 1948 constituted an excessive delegation of the legislative power conferred on the Legislature by the Government of India Act 1935 and that the said Notification was repugnant to section 9 of the Eastern Bengal and Assam Excise Act 1910 and there fore section 33 of the impugned Act and the Notification were void and the Appellate Authority not having been lawfully constituted its orders were nullities
Held that section 33 Of the Assam Revenue Tribunal Transfer of Powers Act 1948 and the Notification issued by the Provincial Government thereunder were not void
The purpose of section 2962 Of the Government of India Act 1935 simply was to authorise the Governors of certain provinces to constitute an appellate tribunal and to prescribe a time limit upto which such tribunal was to function and not to impose either an obligation on the Provincial Legislatures to set up one or to compel them to restrict their powers of legislation under the Act
Even assuming that it did imposesuch an obligation it must be held to have been insubstance fully discharged by the Assam Legislature by the enactnentof section 33of the Assam Revenue Tribunal Transfer of Powers Act 1948
What the Assam Revenue Tribunal Transfer of Powers Act 1948 intended to do was to transfer the powers and jurisdiction hitherto exercised by the Assam Revenue Tribunal 297 to the High Court and to the authority to be appointed by the Provincial Government and the relevant provisions of the Act make it quite clear that the Assam Legislature had applied its mind and clearly determined that such powers and jurisdiction should be distributed between the two
Sub section 3 Of section 3 of the Act although not quite happily drafted leaves no doubt that the Legislature itself constituted the appellate authority mentioned therein and what was left to the Provincial Government was to select the personnel thereof conformably to the usual practice of Indian Legislatures and consequently it could not be said that there was an excessive delegation of legislative power to the Government  The word  appointed  does not necessarily mean already appointed it may also mean  to be appointed  at any future time
The impugned Act was in no way repugnant to the Eastern Bengal and Assam Excise Act 1910 as modified by section 296 of the Government of India Act 1935 and there was no impropriety in the Commissioner of Hills Division and Appeals assuming that he was the same as the Commissioner of a Division being appointed as the Authority to entertain appeals from the Excise Commissioner
Nor could the possibility of an appeal from the decision of any other Commissioner of a Division coming up before him affect the validity of the Notification and it could not be held to be repugnant to section 92 of that Act