Case: State Of Assam Vs. Ka Brhyien Kurkalang &amp; Ors

the legislative power of the Governor is to enure and not to the period up to which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation continues to operate and remains effective until it is either annulled or repealed under some legislative power.A similar distinction was made in J. K. Gas Plant Manufacturing Co. Ltd. v. King Emperor([1947] F.C.R. 141, 161-162.) between the period of emergency contemplated by an Act which empowered the Governor-General to promulgate an Ordinance setting up Special Tribunal to try certain specified cases and the period during which such an Ordinance would subsist and have validity. It was held that the life of such an Ordinance would not be limited by the period during which it could be issued unless the Ordinance itself imposed such a limitation or other amending or repealing legislation did so. Therefore, the Special Tribunal constituted under such an Ordinance did not cease to exist by reason of the expiration on April 1, 1946 of the period specified in S. 3 of the Act. In Rain Kirpal v. Bihar([1970] 3 S.C.R. 233.), this Court had the occasion of considering the provisions of the Fifth Schedule to the Constitution, and in particular its paragraph 5(2) which empowers the Governor to make regulations for the peace and good government of any area in a State which is for the time being a scheduled area and which power under sub-paragraph (3) includes the power to repeal or amend, while making such a regulation, any Act of Parliament or of a State Legislature or any existing law which is for the time being applicable to the area in question. Explaining the content and the scope of that power, Ray, J., speaking for the Court observed at page 244 of the report that the power contained in paragraph 5(2) of that Schedule embraced the widest power to legislate for the peace and good government for the area in question which comprised of not only making of laws but also of selecting and applying laws, and that the power to apply laws is inherent when there is a power to repeal or amend any Act or any existing law applicable to the area in question.The language of paragraph 19 (i) (b) is identical with that of paragraph 5(2) of the Fifth Schedule, and therefore, must bear the same construction given to it in Ram Kirpais case([1970] 3 S.C.R. 233.). There is, therefore, no difficulty in holding that the questioned regulation was a competent legislation made in pursuance of the power conferred by paragraph 19(1) (b), and that under that power the Governor could not only make regulations in the form of substantive but also could apply existing statutes. 8. The preamble of the Regulation recites that it was promulgated because it was found expedient to bring certain enactments into force in certain areas of the United Khasi-Jaintia Hills District. Sec. 1 (1) recites the title of the Regulation. Sub-sec. (2) of that section provides that the Regulation shall come into force at once. The laws made applicable are set out in the schedule appended lo the Regulation., one of which is the Eastern Bengal and Assam Excise Act, 1910. Sec. 2(2) then empowers the Governor to direct, by notification in the Official Gazette, that any of those laws shall extend to and have effect in so much area of the United Khasi-Jaintia Hills District or part thereof and to that purpose different areas and different dates may be specified for different laws. 9. The effect of the Regulation was that the competent legislative authority, in this case the Governor, selected certain enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them itself them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to tile Governor was the time when and the area to which they or any one or more of them should be extended. The Regulation came into force at once and continued to remain in force even after the District Council was set up; so also the power there under conferred on the Governor to extend them either to the District as a whole or to any part or parts thereof.Prima facie, the Regulation was a conditional legislation, the legislative authority, namely, the Governor having by the Regulation itself selected the laws which he wanted to be applied and having. left only the time when and the area in which they or any one of them should be brought into force. Assuming, however, that the legislation was a delegated piece of legislation. there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 ( 1) (b). The power of the Governor to legislate ended when the District Council was constituted. But the power conferred there under on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the statute book. That being the position, the notification, dated September 8, 1961, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under t he Regulation did not lapse since the Regulation itself continued to operate. 10. The High Court, therefore, was in error in holding that the notification was incompetent or that for that reason the Excise Act was not in force, and that therefore , the respondents could not be prohibited from distilling liquor without a valid licence under the Act from a proper authority.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Since the District Council was constituted in June 1952 (see T. Cajee v. U. Jormanik Siem) ([1961] 1 S.C.R. 750.), and it was passed in pursuance of the power conferred by. (b) of cl. (1) of paragraph 19, no question as to the competence of the Governor can arise as the Constitution itself confers such a power on him. As aforesaid, there are no limitations on that power except in regard to the Presidents assent. Consequently, the power is as plenary in its content as the power of a legislature. It is true that the power is to be exercised until a District Council is so constituted for an autonomous district. But that only places a limit to the period until which it is exercisable, and not any limitation upon the extent of the power or the period during which a regulation made by him would be in force once it is validly made. Further, there is no provision either in paragraph 19 or paragraph 12 suggesting that such a regulation is to remain in force and have effect only until a District Council is constituted. In the absence of any such limitation, there i s no warrant for saying that a regulation ceases to have effect once the District Council is constituted. The words such a District Council is so constituted have reference to the period during which the legislative power of the Governor is to enure and not to the period up to which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation continues to operate and remains effective until it is either annulled or repealed under some legislative powerThe effect of the Regulation was that the competent legislative authority, in this case the Governor, selected certain enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them itself them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to tile Governor was the time when and the area to which they or any one or more of them should be extendedAssuming, however, that the legislation was a delegated piece of legislation. there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 ( 1) (b). The power of the Governor to legislate ended when the District Council was constituted. But the power conferred there under on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the statute book. That being the position, the notification, dated September 8, 1961, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under t he Regulation did not lapse since the Regulation itself continued to operateThe High Court, therefore, was in error in holding that the notification was incompetent or that for that reason the Excise Act was not in force, and that therefore , the respondents could not be prohibited from distilling liquor without a valid licence under the Act from a proper authority.