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

Prior to August 15, 1947, the areas originally known as Khasi States were ruled by Chiefs with certain limited powers under special relations with the British Government as the paramount power. The paramountly having lapsed on the passin g , of the Indian Independence Act, 1947, those chiefs acceded to the Dominion of India under Instruments of Accession under which the existing administrative arrangements were continued Later on, the Khasi States were merged in the State of Assam as specified in the First Schedule to the Constitution, and such of the powers which the Chiefs possessed till then came to an end. However, under Arts. 244 and 275 read with the Sixth Schedule, certain special provisions were made regarding the governance of these areas despite their forming part of the State of Assam. The Khasi States were joined with thea Hills District to form one district to be thereafter called the Uniteda Hills District and were placed in Part A of the Table appended to the Sixth Schedule. We are not concerned with the subsequent constitutional developments in regard to these areas as the notification challenged by the respondents extending the Excise Act, 1910 to them was issued in 1961, and the order of refusal by the Deputy Commissioner to permit the respondents lo distil liquor was passed on the extension of that Act by that notification.As aforesaid the administration of the tribal areas in the State of Assam is governed, by virtue of Arts. 244 and 275 of the Constitution, by the provisions contained in the Sixth Schedule. A perusal of Art. 244(2) and the Sixth Schedule shows that though the areas included i n Part A of the Table form part of the State of Assam and, therefore, within the executive authority of that State and the legislative competence of both Parliament and the State Legislative extend over these areas under Arts. 245 and 246, a special administrativep for the tribal people, residing in these areas, has been set up with a view to establish a limited autonomy in view of the special characteristics of the hills people.The scheme of the Sixth Schedule is that paragraphs 1 to 17 apply to areas mentioned in Part A of the Table and paragraph 18 applies to areas mentioned in Part B of the Table. Paragraph 19 contains transitional provisions applicable until District Councils, envisaged b y paragraphs 2 and 3, are constituted. Paragraphs 20, 20A and 21 lay down provisions with regard to the definition of tribal areas, rules as to interpretation and the amendment of the Schedule.      Paragraph 1 provides that the tribal areas in Par t A of the Table shall be an autonomous district: Paragraph 2 provides for the constitution of the District and Regional Councils, the election of their members and the term of office of such members Paragraph 3 lays down the law making powers of the council, both District and Regional. These powers are in respect of matters set out in items (a) to (j). Paris 4 to II make provision with regard to matters such as the administration of justice in autonomous districts and regions, establishment of primary schools, dispensaries, markets, cattle pounds etc., District and Regional Funds, assessment and collection of land revenue, imposition of certain taxes, issuance of licences and leases for prospecting for or extraction of minerals, regulation and control of, and lastly, the publication of laws, rules and regulations made under the Schedule.Paragraph 12(1) (a) provides that notwithstanding anything in the Constitution, no Act of the Assam State Legislature in respect of the matters specified in paragraph 3 with respect to which a District Council or a Regional Council may make laws, and no such Act prohibiting or restricting the consumption of anyd alcoholic liquor shall apply to any autonomous district or autonomous region unless in either case the District Council for such district or having jurisdiction over such region by public notifications so directs. The District Council in so directing with respect to any such Act can also direct that the Act shall have effect subject to such exceptions or modifications as it thinks fit.. (b) of cl. (1) provides that the Governor may direct that an y Act of Parliament or of Assam Legislature, to which the provisions of. (a) do not apply, shall not apply to an autonomous district or region, or shall apply to such district or region or any part thereof subject to such exceptions and modifications as he may specify. Under cl. (2), a direction given under. (a) by the District or Regional Council or tinder. (b) by the Governor can have retrospective effect.

Reasoning:
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.