1957 Supreme(SC) 10

SUPREME COURT OF INDIA
31st January 1957.
S.R. DAS, C.J.I., BHAGWATI, VENKATARAMA AYYAR, SINHA AND S.K. DAS, JJ.
The State of Assam, Appellant
Versus
Sristikar Dowerah and others, Respondents.
The State of Assam, Appellant
Versus
Banarasi Prosad and others, Respondents.
The State of Assam, Appellant
Versus
Upendra Nath Bhattacharjee and others, Respondents.
The State of Assam, Appellant
Versus
Dina Nath Rajkhowa and others, Respondents.
The State of Assam, Appellant
Versus
Mahendra Nath Barua and others, Respondents.
The State of Assam, Appellant
Versus
Nakulchandra Bhuyan and others, Respondents.
The State of Assam, Appellant
Versus
Rafiqul Hussain and others, Respondents.
The State of Assam, Appellant
Versus
Sujit Kumar Barua and others, Respondents.
The State of Assam, Appellant
Versus
Anil Kumar Roy and others, Respondents.
The State of Assam, Appellant
Versus
Tuleswar Saikia and others, Respondents.
The State of Assam,
Versus
Rohatchandra Bargohain and others, Respondents.
The State of Assam, Appellant
Versus
Sukhrarn Koiri and others, Respondents.
The State of Assam, Appellant
Versus
 Jogendra Nath Das and others, Respordents.
Golap Chandra Neog, Appellant
Versus
Sristikar Dowerah and others, Respondents.
Syed Khan and another, Appellants
Versus
 Rafiqual Hussain and others, Respondents.
Deonarayan Singh, Appellant
Versus
Tuleswer Saikia and others, Respondents.
Haridayananda Kakati, Appellant
Versus
 Rahot Chandra Burgahain and others, Respondents.
Rahot Chandra Rajkhowa, Appellant
Versus
Sukhram Koiri and others, Respondents.
Civil Appeals Nos. 346 to 358 of 1956 and Civil Appeals Nos. 359 to 363 of 1956.
Civil Appeal No. 346 of 1956.
Civil Appeal No. 347 of 1956.
Civil Appeal No. 348 of 1956.
Civil Appeal No. 349 of 1956.
Civil Appeal No. 350 of 1956.
Civil Appeal No. 351 of 1956.
Civil Appeal No. 352 of 1956.
Civil Appeal No. 353 of 1956.
Civil Appeal No. 354 of 1956. 415
Civil Appeal No. 355 of 1956
Civil Appeal No. 356 of 1956
Civil Appeal No. 357 of 1956.
Civil Appeal No. 358 of 1956.
Civil Appeal No. 359 of 1956.
Civil Appeal No. 360 of 1956.
Civil Appeal No. 361 of 1956.
Civil Appeal No. 362 of 1956.
Civil Appeal No. 363 of 1956.
Advocates appeared
Mr. S. M. Lahiri Advocate- General of Assam, Mr. A. V. Vishwanatha Sastri, Senior Advocate (Mr. Naunit Lal, Advocate with them), for Appellant in all the appeals. Mr. C. K Daphtary, Solicitor-General of India, and Mr. R. Chaudhuri, Senior Advocate, (Messrs. S.N. Andley, Rameshwar Nath, J.B. Dadachanji and P.L. Vohra of Messrs Rajinder Narain & Co. and Mr. S.C. Das, Advocates, with them), for Respondents Nos. 1 and 2 in Civil Appeal No. 346 of 1956 and Respondent No. 1 in Civil Appeal No 347 of 1956, Messrs. P.R. Das and R. Chaudhuri Senior Advocates, (Messrs, S. N. Andley, Rameshwar Nath, J.B. Dadachanji and P. L. Vohra of Messrs, Rajinder Narain & Co. and Mr. S.C. Das, Advocates, with them) for Respondent No.1 in Civil Appeals Nos. 349 and 350 of 1956, Respondent No. 5 in Civil Appeal No. 351 of 1956, Respondent No. 1 in Civil Appeal Nos. 352 and 353 of 1956 , Respondent Nos. 1 and 6 in Civil Appeal No. 355 of 1956, Respondent No. 1 in Civil Appeal No. 356 of 1956, Respondent No. 5 in Civil Appeal No. 357 of 1956 and Respondent No. 1 in Civil Appeal No. 358 of 1956:
Mr. K.P. Gupta, Advocate for Respondent No.1in Civil Appeal No. 357 of 1956.
Messrs. A. V. Vishwanatha Sastri and Fakhruddin Ali Ahmed, Senior Advocates (Mr. Naunit Lal, Advocate, with them), for Appellant in Civil Appeal No. 359 of 1956.
Messrs. N.C. Chatterjee and Fakhruddin Ali Ahmed, Senior Advocates (Mr. Naunit Lal, Advocate, with them) for Appellants in Civil Appeals Nos. 360 and 361 of 1956.
Mr. Fakhruddin Ali Ahmed, Senior Advocate (Mr. Naunit Lal, Advocate, with him) for Appellants in Civil Appeals Nos.362 and 363 of l956.
Mr. C. K. Daphtary, Solicitor-General of India and Mr. R. Chowdhury, Senior Advocate, (Messrs S.N. Andley, Rameshwar Nath, J.B. Dadachanji and P.L Vohra of Messrs, Rajinder Narain & Co. and My. S.C Das, Advocates with them) for Respondents Nos. 1 and 2 in Civil No. 359 of 1956.
Messrs P.R. Das and R. Chaudhury, Senior Advocates, (Messrs. S.N. Andley Rameshwar Nath, J.B. Dadachanji and P. L. Vohra of Messrs Rajinder Narain & Co. and Mr. S.C. Das, Advocates with them) for Respondent No. 1 in Civil Appeal No. 360 of 1956, 417 Respondents Nos. 1 and 5 in Civil Appeal No. 361 of 1956, Respondent No. 1 in Civil Appeal No. 362 of 1956 and Respondent No. 5 in Civil Appeal No. 363 of 1956. .
Mr. K. P. Gupta, Advocate, for Respondent No. 1 in Civil Appeal No. 363 of 1956.

Headnote:Assam Revenue Tribunal (Transfer of Powers) Act, 1948, Section 3(3), if ultra vires- Government of India Act, 1935, Ss. 296 (2), 99 and 100-S. 296 (2) if placed obligation on Provincial Legislature to constitute tribunal- Delegated legislation.

       Sections 3 (3) and 7 (2)-Tribunal under Assam Revenue Tribunal Act if continued to exist for purpose of 1938 Act Meaning of "appointed".

       Section 3 (3) if repugnant to S. 9, Eastern Bengal and Assam Excise Act, 19Io-Notification No. Rex. 184/52/39 D/- 2.6-1955 if repugnant to S. 9, East Bengal and Assam Excise Act, 1910.

       Government of India Act, 1935, Ss. 296 (2), 99 and 100 and Such. VII, List II-Power of Provincial Legislature to constitute tribunal-Governors tribunal if temporary only.

       1. A.I R. 1956 Assam 48 overruled.

        Eastern Bengal and Assam Excise Act, 1910, Sections I, 36Scope.

       The Eastern Bengal and Assam Excise Act, 1910, was passed in 1910. In exercise of the powers conferred on it by section 36 the Provincial Government of Assam made elaborate rules. A perusal of the Act and rules will make it clear that no person has any absolute right to sell liquor and the purpose of the Act and the rules is to control and restrict consumption of intoxicating liquors, such control and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue. Under section 9 of 1910 Act the Board, which by section 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 section 9 of the 1910 Act. The policy of Parliament was that such practice must be discontinued and hence it introduced provision against it by sub-section (I) of section 296 of the Government of India Act, 1935. 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-section (I) prevented the Board, namely 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-section (2) of section 296 empowered the Governor of those Provinces where the appellate authority was, prior to the commencement of that Act, vested in Provincial Government, to constitute a tribunal to exercise the same jurisdiction. The tribunal so constituted by the Governor was to exercise the jurisdiction until other provision in that behalf was made by the If legislature. In exercise of powers conferred on him by sub-section (2) of that section the Governor of Assam constituted a single member tribunal, called it first the Board and later the Assam Revenue Tribunal. This tribunal so constituted by the Governor functioned until 1946, when the Assam Revenue Tribunal Act, 1946, was passed .

       .

       Sub-section (I) of section 3 of the 1946 Act provided that the Provincial Government should constitute a tribunal to be called the Assam Revenue Tribunal consisting of President and two members. Subsection (2) fixed the period of service as five years. The qualifications of the President and the members were prescribed by sub-section (3) and provision was made by sub-section (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, that is prescribed by rules made under the Act. Powers and functions of the tribunal were defined by sections 5 and 6 of the Act. Sub-section (2) of section 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.

       On 5-4-1948 the High Court was established for the Province of Assam. On 6-4-1948 the Assam Revenue Tribunal (Transfer of Powers)

       .- Act, 1948, received the assent of the Governor of Assam. It was published in the Official Gazette on 8-4-1948 and was brought into force on the same date by a notification issued by the Provincial Government under section I (3). Section 3 of this 1948 Act runs as follows:

       "3 (I) Subject to the provisions of sub-section (3) of this section the Assam High Court shall exercise such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediately before the first day of April 1937 under any law for the time being in force.

       (2) In particular and without prejudice to the generality of the foregoing provision the Assam High Court shall have jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in Schedule A in which such jurisdiction was vested in the Provincial Government immediately before the first "day of April 1937 ; and

       (3) Without prejudice to the foregoing provisions the authority appointed by general or special order of the Provincial Government shall exercise such jurisdiction to entertain appeals and revise decisions in matters arising under the provisions of the enactments specified in Schedule B as is exercised now by the Revenue Tribunal and was vested in the Provincial Government before the first day of April 1937, and

       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 cases specified in section 7 (2),"

       Section 5 prohibits any appeal or revision against any orders passed by the Assam High Court or the authority referred to in section 3 (3) in exercise of its powers of appeal or revision under this Act. Section 6 confers power on the Assam High Court or the authority referred to in section 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. Section 8 confers powers on the Assam High Court to make rules by notification in Official Gazette consistent with the provisions of this Act for carrying out the purposes 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 section 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 194-6 Act and Schedule B contains the remaining four enactments of the schedule to the 1945 Act. Under section 3 the appeals and revisions arising out of the enactments specified in Schedule A are to be dealt with by the High Court and those arising out of the enactments specified in Schedule B are to be dealt with by the authority appointed by general or special order of the Provincial Government.

       In exercise of the powers conferred on it by section 3 (3) of the 1948 Act the Provincial Government from time to time issued notifications appointing persons to exercise the power of appellate authority. On 2•6-1955, a new post called the Commissioner of Hills Division and Appeals• was created and a notification was issued on 5-7-1955 whereby the Commissioner of Hills Division and Appeals was appointed as the appellate authority after cancellation of the preceding notification dated 11-5•1955.

       In 1955 arose the question of granting licences 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 settlement 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 licences to issue to some other claimants. The party dissatisfied with the order of the Excise Commissioner went up on further appeal to appellate authority constituted by the last mentioned notification of the Provincial Government, In some cases the appellate authority upheld the orders of the Excise Commissioner, and 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 licence to third parties who were also claimants for such licence. Parties dissatisfied with the order made by the appellate authority filed petition under Art. 226 of the Constitution for appropriate writs quashing the orders of the appellate authority. At the hearing before the High Court three points were raised on behalf of the petitioners, namely:

       "(I) 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 5-7-1955 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 Court took the, view that section 296 (2) placed an obligation on the Provincial Legislature to constitute a tribunal but the Provincial. Lagislature 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 section 296 (2). The High Court also took the view that, apart from section 296 (2), section 3 (3) of the 1948 Act constituted an excessive delegation of legislative power conferred on the Provincial Legislature by sections 99 and 100 of the Government of India Act, 1935 read with entries 2, 31 and 40 of List II of Schedule 7 thereto. The High Court also upheld the petitioners contention that the notification dated 5-7-1955 was repugnant to section 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 section 3 (3) of the 1948 Act and the said notification were void and that the appeliate 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.

       Held (allowing the appeals): (1) 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 II of the Seventh Schedule. But it could not be contended that the provision that until in exercise of these powers the Provincial Legislature constituted a tribunal the Governors tribunal would continue clearly indicated that the Governors 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. 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 constitu-

       tion of a tribunal. .

       (2) Section 296 (2) did not place an obligation on the Provincial Legislature to constitute a tribunal. On a plain reading of S. 296 (2) its purpose clearly was to authorise the Governors of certain provinces to constitute a tribunal and to prescribe a time limit up to which the tribunal so constituted by him was to exercise the appellate jurisdiction. Beyond this the sub-section was not intended to go. It was concerned with the legislative powers of the Provincial Legislatures which had already been prescribed by Ss. 99 and 100 read with List II 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-so (2) only fixed a terminus in quo and did nothing further. Even assuming, that S. 296(2), imposed an obligation on the Provincial Legislature to constitute a tribunal that obligation has in substance been fully discharged by S. 3(3) of the 1948 Act.

       In order to give a rational meaning to the whole Act of 1948 one is driven to the conclusion that by S. 3(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.

        Section 296(2) 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 to be appointed to the tribunal should have the requisite capacity and competency to deal with appeals from such high officials. It cannot therefore be considered that there has been an excessive delegation of legislative power.

       It cannot therefore be held 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.l

       (3) It cannot possibly be argued that the old 1946 Act tribunal, notwithstanding its abolition, continued to exist for the purpose of 1948 Act for sub-section (2) of section 7 quite clearly authorised the Authority referred to in S. 3 (3) but not the I Y46 Act Tribunal to decide the appeals and applications for revision, which were pending before the old Assam Revenue Tribunal.

       There is no particular form of expression that is necessary for constituting a tribunal.

       (4) The word "appointed" is inappropriate to signify the constitution of any authority but is quite proper to signify the election of the personnel of the already constituted authority to exercise the appellate powers of that authority. "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.

       (5) There is nothing in the 1948 Act which is repugnant to S. 9(2) of the Eastern Bengal and Assam Excise Act, 1910, as modified by S. 296 of the Government of India Act, 1935.

       (6) 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 affect the validity of the Notification whereby the Commissioner of Hills Division and Appeal 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 orders, 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 Appeals would go to the Governor. In any event there does not appear to be any repugnancy between the notification and the so called principle or policy of S. 9 of the 1910 Act as regards the hearing of appeals from the decisions of the Excise Commissioner.

       (7) A persual of the Eastern Bengal and Assam Excise Act, 1910, and rules will make it clear that no person has any absolute right to

       1. A.l.R. 1956 Assam 142 overruled.

       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. - Article 245-Assam Revenue Tribunal (Transfer of Powers) Act, Section 3(3) not a piece of delegated legislation and therefore not ultra vires.