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TMI Blog1957 (1) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... o deal with appeals from such high officials. We do not consider that there has been an excessive delegation of legislative power. 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 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 subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner 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. (4) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 tribunal. In short, as stated by the High Court, the legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,% 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 laboring under some mistake or misapprehension. 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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