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1971 Supreme(SC) 630
SUPREME COURT OF INDIA
STATE OF MEGHALAYA
Versus
K. A. BRHYIEN KURKALANG
Decided on : November 23, 1971
Headnote:
Eastern Bengal and Assam Excise Act, 1910 – Constitution of India, 1950 – Article 244 – Renewal of original permit – Refusal – Appeals, under certificate, arise out of the writ petitions filed by the respondents in High Court of Asam and Nagaland, challenging the validity of the United Khasi-Jaintia Hills Districts (Application of Laws) Regulation, V of 1952 promulgated by the Governor of Assam under paragraph 19 (1) (b) of the Sixth Schedule to the Constitution, the notification, dated 8/09/1961, issued thereunder extending thereby the Eastern Bengal and Assam Excise Act, 1910 to the United Khasi-Jaintia Hills District, and the order of the Deputy Commissioner refusing renewal of a permit authorising the respondents to distil liquor from millet on the ground that there could not be a renewal of the original permit as that permit was issued by one who had no authority to issue it. – High Court allowed the writ petitions on the ground that the Governor had issued the said Regulation under the provisions of paragraph 19 (1) (b) which are transitional, that is, until a District Council for the area was constituted, which was done in June 1952, that once such a council was set up, he could not exercise the power under paragraph 19, that any regulation made thereunder could remain effective until that period only, and that therefore, the notification issued in September 1961, extending the Excise Act had no effect. Consequently, there was, according to the High Court, no Excise Act validly in force in the said District under which the respondents could be prevented from distilling liquor. – Appeals, thus, raise the question of interpretation of paragraph 19 (1) (b) and the scope and extent of the power of the Governor thereunder – Held, Regulation was a conditional legislation, the legislative authority, namely, the Governor having by the Regulation itself selected the laws which he wanted to be applied and having left only the time when and the area in which they or any one of them should br brought into force Assuming however, that the legislation was a delegated piece of legislation, there is no question of such a delegation being excessive, nor is it correct to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 (1) (b ). – Power of the Governor to legislate ended when the District Council was constituted. – But the power conferred thereunder on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the Regulation remained on the Statute book. – That being the position, the notification, though issued after the power under paragraph 19 (1) (b) had ceased, was validly made as the power to issue such a notification under the Regulation did not lapse since the Regulation itself continued to operate – High Court was in error in holding that the notification was incompetent or that for that reason the Excise Duty was not in force and that therefore, the respondents could not be prohibited from distiling liquor without a valid licence under the Act from a proper authority – Appeals Allowed
Judgment
SHELAT
( 1 ) THESE appeals, under certificate, arise out of the writ petitions filed by the respondents in the High Court of Asam and Nagaland, challenging the validity of the United Khasi-Jaintia Hills Districts (Application of Laws) Regulation, V of 1952 promulgated by the Governor of Assam under paragraph 19 (1) (b) of the Sixth Schedule to the Constitution, the notification, dated 8/09/1961, issued thereunder extending thereby the Eastern Bengal and Assam Excise Act, 1910 to the United Khasi-Jaintia Hills District, and the order of the Deputy Commissioner refusing renewal of a permit authorising the respondents to distil liquor from millet on the ground that there could not be a renewal of the original permit as that permit was issued by one who had no authority to issue it. The High Court allowed the writ petitions on the ground that the Governor had issued the said Regulation under the provisions of paragraph 19 (1) (b) which are transitional, that is, until a District Council for the area was constituted, which was done in June 1952, that once such a council was set up, he could not exercise the power under paragraph 19, that any regulation made thereunder could remain effective until that period only, and that therefore, the notification issued in September 1961, extending the Excise Act had no effect. Consequently, there was, according to the High Court, no Excise Act validly in force in the said District under which the respondents could be prevented from distilling liquor. The appeals, thus, raise the question of interpretation of paragraph 19 (1) (b) and the scope and extent of the power of the Governor thereunder.
( 2 ) PRIOR to 15/08/1947, the areas originally known as Khasi States were ruled by Chiefs with certian limited powers under special relations with the British Government as the paramount power. The paramountcy having lapsed on the passing of the Indian Independence Act, 1947, those chiefs acceded to the Dominion of India under Instruments of Accession under which the existing administrative arrangements were continued. Later on, the Khasi States were merged in the State of Assam as specified in the First Schedule to the Constitution, and such of the powers which the Chiefs possessed till then came to an end. However, under Articles 244 and 275 read with the Sixth Schedule, certain special provisions were made regarding the governance of these areas despite their forming part of the State of Assam. The Khasi States were joined with the Khasi-Jaintia Hills District to form one district to be thereafter called the United Khasi-Jaintia Hills District and were placed in Para A of the Table appended to the Sixth Schedule. We are not concerned with the subsequent constitutional developments in regard to these areas as the notification challenged by the respondents extending the Excise Act, 1910 to them was issued in 1961, and the order of refusal by the Deputy Commissioner to permit the respondents to distil liquor was passed on the extension of that Act by that notification.
( 3 ) AS aforesaid, the administration of the tribal areas in the state of Assam is governed, by virtue of Articles 244 and 275 of the Constitution, by the provisions contained in the Sixth Schedule. A perusal of Article 244 (2) and the Sixth Schedule shows that though the areas included in Para A of the Table from part of the State of Assam and, therefore, within the executive authority of that State and the legislative competence of both Parliament and the State Legislature extends over these area under Arts. 245 and 246, a special administrative set up for the tribal people, residing in these areas, has been set up with a view to establish a limited autonomy in view of the special characteristics of the hills people.
( 4 ) THE scheme of the Sixth Schedule is that paragraphs 1 to 17 apply to areas mentioned in Part A of the Table and paragraph 18 applies to areas mentioned in Part B of the Table. Paragraph 19 contains transitiona
