The State of Assam Vs. A. N. Kidwai,
Commissioner of Hills Division And Appeals [1957] Insc 7 (31 January 1957)
ACT:
Revenue Tribunal, transfer of powers
of-Enactment authorising Provincial Government to appoint Appellate Authority Legality-If
an excessive delegation of legislative Power Notification by Government making
such appointment-Validity' Repugnancy--Assam Revenue Tribunal (Transfer of
Powers) Act, 1948 (Assam IV Of 1948), s. 3(3)-Government of India Act, 1935 (25
& 26 Geo. 5. Ch. 42), S. 296-Eastern Bengaland Assam Excise Act (Eastern
Bengal and Assam 1 of 1910), S. 9 (2).
HEADNOTE:
These appeals by the State of Assam and some
other parties from a number of judgments of the High Court of Assam, passed
under Art. 226 of the Constitution, quashing certain orders of the Appellate
Authority appointed by the Governor of Assam by a Notification under s. 3(3) 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 there from, 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-s. (1) put it a ban on the members of
the Legislature from functioning as the Board and by sub-s. (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 s. 3(3) Of the Act. The High Court
in disposing of the writ petitions took the view that S. 296(2) Of the
Government of India Act placed a mandate on the Provincial Legislature to
constitute the tribunal which. it failed to do and that s. 3(3) 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
s. 9 of the Eastern Bengal and Assam Excise Act, 1910 and, therefore, S. 3(3)
of the impugned Act and the Notification were void and the Appellate Authority
not having been lawfully constituted its orders were nullities.
Held that s. 3(3) -Of the Assam Revenue
Tribunal (Transfer of Powers) Act, 1948, and the Notification issued by the
Provincial Government there under were not void.
The purpose of s. 296(2) 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 impose such an
obligation, it must be held to have been in substance fully discharged by the
Assam Legislature by the enactment of s. 3(3)of 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 S. 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 s. 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 S. 9(2) of that Act.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 346 to 363 of 1956.
Appeals under Article 132(1) 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.
S. M. Lahiri, Advocate-General of Assam, A.V.
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 C.K. Daphtary, Solicitor-General
of India, B. Chaudhuri, S.
N. Andley, Rameshwar Nath. J. B. Dadachanji,
P. L. Vohra and S. 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, S. N. Andley,
Remeshwar Nath, J.
B. Dadachanji, P. L. Vohra and S. 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.
1957. January 31. The Judgment of the Court
was delivered by DAS C.J.-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 Art. 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 Art.
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 s. 3(3) 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. 184/52/39 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 (E.B. 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 s. 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:
9(1) 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.
(2)Orders 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(a)to the District
Collector, any order passed by a Collector other than the District Collector;
(b)to the Excise Commissioner 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 (c)to
the Board, any order passed by the Excise Commissioner or by the Commissioner
of a Division.
(3)In 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, possession, and 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 s. 15 or s. 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 s. 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 s. 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-s. (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
s. 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.
(2)If 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.
(3)There 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. 3(2) 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 s. 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-s. (1) of s. 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-s.
(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-s. (2) of s.
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-s. (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 qualifications
of the President and the members were prescribed by sub-s. (3) and provision
was made by sub-s. (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, i,e., 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 s. 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 s. 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.
(2)in 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 (3)Without 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
(4)The 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-s. (3) of this section' and sub-s. (2) is without prejudice
to the generality of sub-s. (1), sub-s. (3) is expressed to be "without
prejudice to the foregoing provisions", that, is to say the provisions of
sub-ss. (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 s. 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 s. 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.
(2)The 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 s. 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-s. (1) of s. 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 s. 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 s. 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 s. 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 s.
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. 184/52/39 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-s. (3) of
this section' and sub-s. (2) is without prejudice to the generality of sub-s.
(1), sub-s. (3) is expressed to be "without prejudice to the foregoing
provisions", that, is to say the provisions of sub-ss. (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 s. 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 s. 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.
(2)The 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 s. 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-s. (1) of s. 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 s. 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 s. 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 s. 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 s.
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. 184/52/39 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 Art. 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 s. 3(3) of the 1948 Act was bad,
because (a) it was repugnant to s. 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. 184/52/39
issued on July 5, 1955, was repugnant to the whole scheme and policy of s. 9 of
the 1910 Act; and (3) that assuming that s. 3(3) 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 s. 296(2) 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 s.
296(2).
This reading of a. 296(2) 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 s. 296(2), s. 3(3) of the 1948 Act constituted an
excessive delegation of legislative power conferred on the Provincial
Legislature by ss. 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 s. 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 s. 3(3) 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 s. 3(3) 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 s. 296(2) 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 s. 296 was to deal with courts of appeal in
revenue cases. By sub-s. (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 ss. 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-s. (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 ss. 99 and
100 read with the aforesaid entries in list II of the Seventh schedule.
Sub-section (2) of s. 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 s. 296(2) 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 s. 296(2) 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 s.
296 (2) but was conferred on it by ss. 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 subsection 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 s. 296 (2) by the High Court which has been
pressed upon us in a slightly modified form as herein below 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
s. 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 ss. 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-s. (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 s. 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 s. 3(3) 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 s. 296 (2) contained a mandate and whether the Provincial Legislature
had obeyed the same, s. 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 ss. 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 s. 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, Delhi Laws Act, 1912 (2) and finally to
Raj Narain Singh v. The Chairman, Patna Administration Committee(3). 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 s. 9(2) of that Act herein below quoted. Then came the Government of India
Act, 1935, s. 296(2) 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 s. 3 of that Act. Jurisdiction was conferred on
the Tribunal to entertain appeals and revise decisions in all revenue cases
arising under the 1. [1878] L. R. A. 178.
3. [1955] 1 S. C. R. 290.
40 2. [T951] S. 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 S. 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-s. (3) of s. 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 s. 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 s. 3(3) 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 s. 3(3). 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 s. 3(3). 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 s.
3(3).
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 s. 7(1) of the 1948
Act. But this argument cannot hold good for a moment in view of sub-s. (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 s. 3(3) 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 subs. (2) of s. 7 quite clearly authorised the High Court and
the Authority referred to in s. 3(3) 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, therefore, 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 s. 3(1) 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-ss. (1) and (2) of s. 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-ss. (1) and (2) of s. 3
is sufficient to constitute the Assam High Court as an appellate authority why
does not the language of sub-s. (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 inaptlydrafted.
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:
1.The Central Board of Revenue Act, 1924 (Act
No. IV of 1924), Section 2.
2. The Indian Boilers Act, 1923 (Act V of
1923),Section 20.
3. Bengal Board of Revenue Act, 1913,
Sections 3 and 4.
4. The Motor Vehicles Act, 1939 (Act IV of
1939),Section 64.
5. The Factories Act, 1948 (Act LXIII of
1948),Section 107.
6. Schedule Districts Act (XIV of 1874),
Section 6.
7. Essential Supplies (Temporary Powers)
Act,1946, Section 4.
8. Assam Act XVII of 1947 (Sales Tax
Act),Section 30.
9. BombayAct V of 1946 (Sales Tax
Act),Section 21.
10. Bengal Raw Jute Taxation Act (XI of
1941),Section 21.
11. 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.
14. 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 296(2) 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 delegation 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 s. 9 of the 1910 Act. There was no
question, it was said, of any implied repeal of any portion of s. 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 s.
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 thereafter 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 s. 3 (3) of the last mentioned Act. There is, in the
circumstances, nothing in the impugned Act which is repugnant to s. 9 (2) as
modified by s.296 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 s. 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 s. 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 s. 296(2) 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 s.
3(3) 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 s. 3
(3) of the 1948 Act.
The possibility of an appeal from the decision
of the Commissioner of a Division coming up before the authority referred to in
s. 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 s. 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 s. 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 Assam has 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.
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