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PETITIONER: STATE OF ASSAM

       Vs.

RESPONDENT: KA BRHYIEN KURKALANG & ORS.

DATE OF JUDGMENT23/11/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. (CJ) DUA, I.D. MITTER, G.K.

CITATION:  1972 AIR  223            1972 SCR  (2) 381  1972 SCC  (1) 148  CITATOR INFO :  R          1972 SC1193  (10)

ACT: Constitution  of India, 1950, Sch.  VI, para  19--Scope  of- Regulation   by   Governor  before  District   Council   for autonomous  district  was  constituted--Whether   Regulation effective thereafter. United  Khasi Jaintia Hills District (Application  of  Laws) Regulation  5, 1952, s. 2(2)-Notification extending  Act  in Schedule  to Regulation to autonomous district-Issued  under Regulation after District Council was constituted-Effect.

HEADNOTE: The administration of tribal areas in the State of Assam  is governed, by virtue of Arts. 244 and 275 of the Constitution by   the  provisions  contained  in  Schedule  VI   of   the Constitution.   Paragraph  19 of the  VI  Schedule  contains transitional  provisions, under which the administration  of autonomous districts of the tribal areas specified in Part A of  the Table to the Schedule is vested in the  Governor  of the  State until a District Council was constituted for  the autonomous  district.  Under cl. 1(b) of the  paragraph  the Governor may make Regulations for the peace and good govern- ment  of any area and any Regulation so made may  repeal  or amend  any Act of Parliament or of the State Legislature  or any  existing law which is for the time being applicable  to such  area.  The power conferred on the Governor is  thus  a legislative power without any limitations even in regard  to matters in respect of which he can promulgate a  Regulation. The  only limitation is the requirement of the  Presidential assent for the Regulation to have effect. [509 A-B, C-D; 510 G-H; 511 A-D] For  the  autonomous district of the  United  Khasi  Jaintia Hills a District Council was constituted in June 1952.   But before that date, the Governor promulgated the United  Khasi Jaintia Hills District (Applications of Laws) Regulation  of 1952  for which the Presidential assent was obtained in  May 1952.  The laws made applicable are set out in the ’schedule to the Regulation.  Section 2(2) of the Regulation empowered the  Governor  to  direct by notification  in  the  official

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gazette that any of the laws set out in the schedule to  the Regulation  shall extend to and have effect in so much  area of the United Khasi-Jaintia Hills District or part  thereof, and  for that purpose, different areas and  different  dates may  be specified for different laws. [508 A, C; 511 G;  513 D-E] On September 8, 1961, the Governor by notification  extended thereby the Eastern Bengal and Assam Excise Act, 1910, which was  one of the laws in the schedule to the  Regulation,  to the  United  Khasi Jaintia Hills  District.   The  authority under  the Act refused renewal of a permit  authorising  the respondents  to  distil liquor.  The  respondents  thereupon challenged  the  validity of the regulation as well  as  the notification issued there-under and the High Court held that once  a District Council was set up the Governor  could  not exercise  power  under  para 19, that  any  Regulation  made thereunder  could remain effective until that  period  only, and  that  therefore, the notification issued  in  September 1961 extending rho Excise Act had no effect. Allowing the appeal to this Court, 507 HELD  : (1) The Regulation was a competent legislation  made in pursuance of the power conferred by para 19(1)(b) of  the VI  Schedule  to the Constitution and under that  power  the Governor  could  not only make Regulations in  the  form  of substantive  laws  but also could apply  existing  statutes. The words ’until a District Council is so constituted for an autonomous district’ in the paragraph only place a limit  to the period until which the power is exercisable and not  any limitation  on the extent of the power or the period  during which  a Regulation made by the Governor would be  in  force once   it  is  validly  made.   Like  any  other  piece   of legislation, the Regulation continues to operate and  remain effective until it is either annulled or repealed under some legislative power. [512 A-D; 513 B-C] Ram Kirpal v. Bihar, [1970] 3 S.C.R. 233, followed. J.   K.  GaS  Plant Manufacturing Co. Ltd. v.  King  Emperor [1947] F.C.R.  141, referred to. (2)  The  effect  of the Regulation was that  the  competent legislative authority, namely the Governor, selected certain laws  enumerated in the schedule for their being applied  to the  district; and it left it 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 should  be  extended  and brought  into  force.   The  Regulation,  therefore,  was  a conditional legislation [513 E-F, G-H] (3)  Assuming,  however, that it was  delegated  legislation there  is no question of the 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 para 19(1)(b).  The power of the Governor to legislate ended when  the  District Council was constituted; but  the  power conferred  by the Regulation 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. [513 H. 514 A-B] Therefore,   the  notification  dated  September  8,   1961, extending  the  Excise Act, though issued  after  the  power under  para  19(1)(b)  had  ceased.  was  valid  since   the Regulation  itself  continued to operate and  the  power  to issue such a notification did not lapse. [514 B-C]

JUDGMENT:

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CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  1162  to 1173 of 1969. Appeal from the judgment and order dated February 9, 1965 of the Assam and Nagaland High Court in Civil Rules Nos. 206 to 215, 234 and 235 of 1963. S.   V. Gupte and Naunit Lal, for the appellants (in all the appeals). . The respondent did not appear. The Judgment of the Court was delivered by Shelat, J. These appeals, under certificate arise out of the writ petitions filed by the respondents in the High Court of Assam and Nagaland, challenging the validity of the United 508 Khasi-Jaintia   Hills   Districts  (Application   of   Laws) Regulation,  V of 1952 promulgated by the Governor of  Assam under  paragraph  19(1)(b)  of the  Sixth  Schedule  to  the Constitution,  the  notification, dated September  8,  1961, issued  thereunder extending thereby the Eastern Bengal  and Assam  Excise  Act, 1910 to the United  Khasi-Jaintia  Hills District, and the order of the Deputy Commissioner  refusing renewal  of a permit authorising the respondents  to  distil liquor  from millet on the ground that there could not be  a renewal of the original permit as that permit was issued  by one  who  had  no authority to issue  it.   The  High  Court allowed  the writ petitions on the ground that the  Governor had  issued  the  said Regulation  under  the  provision  of paragraph 19 (1) (b) which are transitional, that is,  until a  District Council for the area was constituted, which  was done  in June 1952, that once such a council was set up,  he could  not exercise the power under paragraph 19,  that  any regulation made thereunder could remain effective until that period only, and that therefore, the notification issued  in September  1961  extending  the Excise Act  had  no  effect. Consequently,  there  was, according to the High  Court,  no Excise Act validly in force in the said District under which the  respondents could be prevented from distilling  liquor. The  appeals, thus, raise the question of interpretation  of paragraph 19(1) (b) and the scope and extent of the power of the Governor thereunder. 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  passing  ,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  the Khasi-Jaintia  Hills  District to form one  district  to  be thereafter called the United KhasiJaintia 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. 509

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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 in 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  administrative  set-up 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 by  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 Part 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  pros- pecting  for  or  extraction  of  minerals,  regulation  and control  of  money-lending and trading by  non-tribals,  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 any non-distilled 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 2-L643Sup.CI/ 72 510 thinks  fit.   Sub-cl.  (b) of cl.  (1)  provides  that  the Governor  may direct that any Act of Parliament or of  Assam Legislature,  to which the provisions of sub-cl. (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 sub-cl. (a)  by the District or Regional Council or  tinder  sub-cl. (b) by the Governor can have retrospective effect. From the language of this paragraph it is clear :               1.    that    Parliament   and    the    State               Legislature have competence to make laws  with

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             respect to the respective matters assigned  to               them  under the Seventh Schedule  under  Arts.               245 and 246,               2.    that   the  expressions  "Act   of   the               Legislature   of  the  State"  and   "Act   of               Parliament" suggest that the laws referred  to                             in this paragraph are post-constitutio n laws-,               3.    that an Act of the State Legislature, if               it  is in respect of any of the  matters  over               which under paragraph 3 a District Council  or               a Regional Council has the power to make laws,               or  if it is one which prohibits or  restricts               consumption of non-distilled alcoholic liquor,               cannot  apply  to any area in Part  A  of  the               Table unless the District or Regional Council,               as the case may be, so directs;               4.    in matters other than those specified in               paragraph  3 and to which sub-cl.  (a)  cannot               apply,  the  Governor is empowered  to  direct               that  any  Act of Parliament or of  the  State               Legislature  shall  not apply or  shall  apply               with  such exceptions or modifications and  to               such district or region or any part thereof as               he may direct. The   object  underlying  paragraph  12  is  to   save   the legislative  powers  of the District  and  Regional  Council conferred  under  paragraph 3 and to safeguard  the  special characteristics  of  the  people living  in  the  autonomous districts and regions. Paragraph  19  as  its  marginal  note  indicates,  contains transitional  provisions.  Its  cl. (1)  first  directs  the Governor  to  take  steps  as soon  as  possible  after  the commencement  of  the  Constitution for the  setting  up  of District Councils for the autonomous areas specified in Part A  of the Table.  It next provides that until that is  done, the  administration  of  such districts shall  vest  in  the Governor,  and that such administration shall be carried  on in  accordance  with  the provisions  thereinafter  set  out "instead of the foregoing provisions of this Schedule", that is to say, paragraphs 511 1 to 18.  Thus, paragraph 12 does not operate until District Councils for the autonomous districts under paragraph 2 have been constituted.  Paragraph 19 next confers on the Governor two distinct powers, namely,               (a)   no  Act  of Parliament or of  the  State               Legislature  shall  apply  to  any  such  area               unless the Governor so directs. or, that  such               Act  shall apply to the area or any  specified               part  thereof  subject to such  exceptions  or               modifications as he thinks fit, and               (b)   he  may make regulations for  the  peace               and  good government of any such area and  any               regulation so made may repeal or amend any Act               of  Parliament or of the State Legislature  or               any  existing law which is for the time  being                             applicable to such area. Cl. (2) provides that a direction made under sub-cl. (a) can be  given  retrospective effect.  Cl. (3) lays down  that  a regulation made under sub-cl. (b) can have effect only  when the President has given his assent. We  need not pause to consider sub-cl. (a) of clause (1)  as it  does not concern us for the time being.  So far as  sub- cl. (b) is concerned, the power conferred on the Governor is

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manifestly   a   legislative  power  and  is   without   any limitations even in regard to matters in respect of which he can  promulgate a regulation.  The only limitation  to  that power is the requirement of the Presidential assent  without which the regulation would have no effect. The question then is, whether the Governor was competent  to promulgate  Ordinance V of 1952, and to issue  the  impugned notification. dated September 8, 1961 ? The question, in our view, does not present any difficulty felt by the High Court and  on account of which it came to the conclusion which  it did. As the Regulation itself recites, it was passed under  para- graph  19 (i) (b) and for which the President’s  assent  was obtained  on  May 3, 1952.  Since the District  Council  was constituted in June 1952 (see T. Cajee v. U. Jormanik  Siem) (1),  and it was passed in pursuance of the power  conferred by sub-cl. (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 President’s  assent.  Consequently, the power is as  plenary in its content as the power of a legislature. (1)  [1961] 1 S.C.R. 750. 512 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 is  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 upto  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  Manufac- turing  Co.  Ltd. v. King Emperor(1) 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(2), 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

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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 (1) [1947] F.C.R. 141,161-162. (2) [1970] 3 S.C.R. 233. 513 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  Kirpai’s case(1).  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. 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. The effect of the Regulation was that the competent legisla- tive 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 conti- nued to remain in force even after the District Council  was set  up;  so  also the power  thereunder  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 (1)  [1970] 3 S.C.R. 233. 514 legislative authority of the Governor under paragraph 19 (1) (b).  The power of the Governor to legislate ended when  the

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District  Council was constituted.  But the power  conferred thereunder 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 the Regulation did not lapse  since  the Regulation itself continued to operate. 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.   For  the  reasons aforesaid,  the  appeals  are allowed, but in the circumstances of the case there will not be any order as to costs. V.P.S Appeals allowed. 515