31 January 1957
Supreme Court
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THE STATE OF ASSAM Vs A. N. KIDWAI, COMMISSIONER OF HILLSDIVISION AND APPEALS,

Bench: DAS, SUDHI RANJAN (CJ),BHAGWATI, NATWARLAL H.,AIYYAR, T.L. VENKATARAMA,SINHA, BHUVNESHWAR P.,DAS, S.K.
Case number: Appeal (civil) 346-363 of 1956


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PETITIONER: THE STATE OF ASSAM

       Vs.

RESPONDENT: A.   N. KIDWAI, COMMISSIONER OF HILLSDIVISION AND APPEALS,SH

DATE OF JUDGMENT: 31/01/1957

BENCH:

ACT: Revenue Tribunal, transfer of powers of-Enactment  authoris- ing  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 therefrom, appealed  to  the Appellate Authority whose orders were, as stated, quashed by the  High Court. under the Eastern Bengal and  Assam  Excise Act, 1910, the Board which was the final appellate authority meant  the  Provincial Government and  ministers,  who  were necessarily  members of the Legislature, functioned  as  the Board.  Section 296 of the Government of India Act, 1935, by sub-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

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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, there- fore, 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 thereunder 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 imposesuch an   obligation, it  must be held to have been insubstance fully     discharged   by the Assam Legislature by the enactnentof  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.

JUDGMENT: 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

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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,

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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 Comniissiouer or, in such cases  and  such matters  as  the Provincial Government may specify,  to  the Commissioner  of  the  Divisions, any order  passed  by  the District Collector; and (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

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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

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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  qualifi- cations 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

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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

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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.

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(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

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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

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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

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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  sub- section means that the Governor’s tribunal would continue to exercise  the  jurisdiction until other  provision  in  that behalf, that is to say, other provision for or with  respect to the exercise of the same jurisdiction was made by Act  of the  Provincial  Legislature.  It is pointed  out  that  the construction   suggested   by  learned   counsel   for   the respondents  would  lead  us  to  the  conclusion  that  the intendedly of the concluding part of the Sub-section was  to impose a fetter on the legislative powers of the  Provincial Legislatures   of  those  provinces  referred  to   in   the subsection so that they could constitute a tribunal if  they ever  wanted to exercise their legislative powers under  the entries  mentioned above but could make no  other  provision with  respect  to the exercise of such jurisdiction  as  was being   exercised  by  the  Provincial  Government  at   the commencement of the Government of India Act, 1935.  On  this construction the Legislatures of those provinces only  would be  prevented  from abolishing the right  of  final  appeal, while  other provinces in which the  appellate  jurisdiction was not, at the date of the commencement of Part III of  the Government of India Act, 1935, being exercised by the  local government  would  be  free to abolish the  right  of  final appeal.  A construction which leads to such a result should, they  contend,  be  avoided, if  possible.   The  criticisms advanced against the construction put upon s. 296 (2) by the High  Court  which has been pressed upon us  in  a  slightly modified  form as hereinbelow mentioned do not appear to  us to be wholly untenable or devoid of substance.  We need not, however, base our decision on those considerations, for on a plain  reading  of  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

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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

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from s. 9(2) of that Act hereinbelow 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

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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 sub- s.  (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, there fore,  the  1948 Act  did  not  purport  to be an  Act  for  constituting  an appellate tribunal but that the purpose of the Act was  only to  distribute  the  appellate  powers  as  recited  in  its preamble.   It was argued that by this Act  the  legislature

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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 inaptly-  drafted. The  intention of the framers of the  sub-section,  however, appears  to  be  quite clear  that  the  legislature  itself applied its mind and constituted an appellate authority.  If that  were  not  so then after the abolition  of  the  Assam Revenue  Tribunal, which took effect on the date of the  Act there  would  result  a vacuum as regards  the  exercise  of jurisdiction  to entertain appeals and revisions  under  the provisions  of  the enactments specified in schedule  B  and there would be no authority to deal with the pending appeals and revisions or future appeals and revisions arising  under those several enactments.  It is further to be noticed  that the   sub-section   uses  the  word  "appointed"   and   not "constituted".   The  word "appointed" is  inappropriate  to signify  the  constitution  of any authority  but  is  quite proper  to  signify the selection of the  personnel  of  the already  constituted  authority to  exercise  the  appellate powers  of  that  authority.  In order to  give  a  rational meaning to the 318 whole Act one is driven to the conclusion that by subs.  (3) the  legislature itself constituted the authority  and  only left  it to the Provincial Government to appoint persons  to man  that  authority  and  to perform  the  duties  of  that authority.   It appears to be the usual practice  of  Indian legislatures  to constitute authorities in this manner.   In support  of such legislative practice reference may be  made to the following enactments: 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.

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8.   Assam Act XVII of 1947 (Sales Tax Act),Section    30. 9.   Bombay- Act 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  dele- gation of legislative power. It was finally urged that the intention of the  legislature’ in enacting the impugned Act was to give effect, inter alia, to  the  provisions  of the Excise Act and  that  there  was nothing in any portion of the impugned Act to indicate  that the intention of the legislature was to effect the repeal of the  provisions  of  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  there- after  in the Assam Revenue Tribunal constituted  under  the 1946 Act, and this appellate jurisdiction was 320 by  the 1948 -Act distributed between the Assam  High  Court and  the  authority  referred to in 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

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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  Com- missioner  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.