# The St alt of Assam v. A. N. Kidwai 2%

- **Citation:** [1957] 1 S.C.R. 295
- **Court:** Supreme Court of India
- **Decided:** 1955-07-05
- **Case number:** Civil Rules Nos. 26. 31, 32 and 33 of 1956
- **Bench:** s. R. DAS c. J, Bhagwati, Venkatarama Ayyar, B. P. S1Nha, S. K. DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-st-alt-of-assam-v-a-n-kidwai-2-1341
- **Pages:** 27

## Headnote

Revenue Tribunal, 11·ansfe1· of powers of-Enactment authorising
Provincial
Government
to
appoint
Appellate
AuthorityLegality-lf an excessive
delegation of
legislative
power-Notification
by
Government
making
such
appointment-ValidityRepugnancy-Assam Revenue T1-ibunal
(Transfer of Powers) Act,
1948 (Assam IV of 1948), s. 3(3)-Government of India Act, !93S
(25 & 26 Geo. 5. Ch. 42), s. 296-Eastern Bengal and Assam fa:cise
Act (Eastern Bengal and Assam 1 of 1910), s~ 9 (2).
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 :μid
those of the
5-100 S. C. Indi~/59
.
. 1957
Thi St611 of Biluir
v.
Ram Nares/!
Pandey
]agannatl.hatl.as J.
1957
January, SI.
1957
The St alt of Assam
v.
A. N. Kidwai
2%
SUPREME COURT REPORTS
[19571
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. (I)
put 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 l{evenue
Tribunal
Act, 1946, empo\\·~:-
ing the Provincial Governn1ent to constitute
the
Assam Revenue
Tribunal
consisting of three members.
In
1948 the
High Cot!rt
of Assam was established
and shortly
thereafter
was passed
tne
Assam H.evenue Tribunal (Transfer of Power~) 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 \Vrit petitions
cook the view that s. 296(2) ot
the Government of India Act placed a 1nandate on the
Provin;:i.:1!
Legislature to constitute the tribunal which it failed to do and
that s. 3(3) of the Assam Revenue
Tribunal (Transfer of Powers)
Act, I 948, constituteJ an excessive
delegation
of the
legislative
power conferred
on the Legislature
by the Government of India
Act, 1935,
and
that
the sai<l
Notification was repugnant to s. 9
<>f the Eastern Bengal and Assam
Excise
Act, 1910,
and, therefore, s. 3(3) of the impugned Act and the Notification were void
and the Appel_late
Authority not having been lawfully
constituted
its orders were nullities~
Hdd, that s. 3(3) of the Assam Revenue
Tribunal
(Transfer
of Powers)
Act, 1948, and the Notification
issued by
the Provincial Governn1ent thereunder were not void.
The purpose of s. 296(2) of the G.ivernment of India Ac:,
1935, simply was to authorise
the Governors
of certain provinces
to constitute
an
appellate
tribunal
and
to prescribe
a
timelimit 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 pov;•ers of legislation
under the
Act.
Even
assuming
that
it
did
impose
such an
-obligation

## Text

_Characters 0–39,763 of 60,548. This is a partial read: ask again with offset=39763 for what follows._

S.C.R.
SUPREME COURT REPORTS
295
There was some question raised before us as to
whether the private complainants could be allowed
to
participate in these
proceedings at
the
various
stages. Nothing that we
have said is
intended to
indicate that the
private complainant has
a locus
standi.
It is unfortunate that this prosecution which is
still pending at its very early stages has got to be
proceeded with against all the rest of the accused,
after the lapse of nearly three years from the date
of the murder. It is to be hoped that the proceedings
which must follow will be speeded up.
Appeals allowed.
THE ST ATE OF ASSAM
v.
A. N. KIDW Al, COMMISSIONER OF HILLS
DIVISION AND APPEALS, SHILLONG.
(with connected appeals)
[ s. R. DAS c. J., BHAGWATI, VENKATARAMA AYYAR,
B. P. S1NHA and S. K. DAs JJ.]
Revenue Tribunal, 11·ansfe1· of powers of-Enactment authorising
Provincial
Government
to
appoint
Appellate
AuthorityLegality-lf an excessive
delegation of
legislative
power-Notification
by
Government
making
such
appointment-ValidityRepugnancy-Assam Revenue T1-ibunal
(Transfer of Powers) Act,
1948 (Assam IV of 1948), s. 3(3)-Government of India Act, !93S
(25 & 26 Geo. 5. Ch. 42), s. 296-Eastern Bengal and Assam fa:cise
Act (Eastern Bengal and Assam 1 of 1910), s~ 9 (2).
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 :μid
those of the
5-100 S. C. Indi~/59
.
. 1957
Thi St611 of Biluir
v.
Ram Nares/!
Pandey
]agannatl.hatl.as J.
1957
January, SI.
1957
The St alt of Assam
v.
A. N. Kidwai
2%
SUPREME COURT REPORTS
[19571
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. (I)
put 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 l{evenue
Tribunal
Act, 1946, empo\\·~:-
ing the Provincial Governn1ent to constitute
the
Assam Revenue
Tribunal
consisting of three members.
In
1948 the
High Cot!rt
of Assam was established
and shortly
thereafter
was passed
tne
Assam H.evenue Tribunal (Transfer of Power~) 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 \Vrit petitions
cook the view that s. 296(2) ot
the Government of India Act placed a 1nandate on the
Provin;:i.:1!
Legislature to constitute the tribunal which it failed to do and
that s. 3(3) of the Assam Revenue
Tribunal (Transfer of Powers)
Act, I 948, constituteJ an excessive
delegation
of the
legislative
power conferred
on the Legislature
by the Government of India
Act, 1935,
and
that
the sai<l
Notification was repugnant to s. 9
<>f the Eastern Bengal and Assam
Excise
Act, 1910,
and, therefore, s. 3(3) of the impugned Act and the Notification were void
and the Appel_late
Authority not having been lawfully
constituted
its orders were nullities~
Hdd, that s. 3(3) of the Assam Revenue
Tribunal
(Transfer
of Powers)
Act, 1948, and the Notification
issued by
the Provincial Governn1ent thereunder were not void.
The purpose of s. 296(2) of the G.ivernment of India Ac:,
1935, simply was to authorise
the Governors
of certain provinces
to constitute
an
appellate
tribunal
and
to prescribe
a
timelimit 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 pov;•ers of legislation
under the
Act.
Even
assuming
that
it
did
impose
such an
-obligation,
it
111ust
be
held
to have been in
substance fully
discharged
by the Assam Legislature by the enactment of s. 3(3)
of the
.A.ssam
Revenue
Tribunal
{Transfer_. of Powers)
Act,
1948.
What the
Assam
Revenue
Tribunal
(Transfer of Powers)
Act,
1948,
intended to
do
\V:ts
to
transfer
the
O'.)\\ters
~tnd
jurisdiction
hitherto exercised
by
the 1\ssam R•:\·cnu'e Tril.:unal
S.C.R.
SUPREME COURT REPORTS
;to the High Court and to the authority to be
appointed by
the
1957
Provincial
~overnment, and
the releva~t provisions of t~e-
~ct The Sia" rif Assam
make it quite clear that the
Assam Legislature had
applied
its
v.
mind and clearly determined that
such
powers
and jurisdiction
A. N. Xiduldi
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
cthe 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 legislativ· power to the Government :
The
word "appointed"
does not
necessarily
mean alreadv
appointed,
it may also
mean
"to i>e appointed"
at any futur~
time.
The impagned
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.
C1v1L
APPELLATE
JuRISDICTION :
Civii
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 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 Civi'
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 Narmit
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.
1957
Thi Stat1 of .Assam
••
A. N. JridUUJi
298
SUPREME COURT REPORTS
[1957]
C. K. Daphtary, Solicitor-G~neral of India, R. Chaudhuri, S. N. Andley, Rameshwar Nath, /. B. Dadachanii,
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. R. Das, R. Chaudhuri, S. N. Andley, Rameshwar
Nath, /. 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-s. (3) of s. 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.
S.~.R.
SUPREME COURT REPORTS
299
In order to correctly appreciate the question raised
before us it is necessary at this stage to refer to certain
relevant
statutory
provmons
and rules.
In 1910 wa~
passed the Eastern Bengal and Assam Excise Act, 1910
(E.B. and Assam Act 1 of 1910)
which is
hereinafter
callc<l "the 1910 Act."
It is
an Act · to consolidate
anJ amend the law in force in Eastern Bengal and
Assam
relating to
the
import,
export,
transport,
manufacture,
sale
and possession
of intoxicant
liquor
and
intm•icant
drugs. Sub-section
(2)
of s.
~ as
amended
and adapted,
defines
"Board"
as
meaning
the
Provincial
Government of Assam.
Chapter II cf
the Act deals with establishments and control. Section 8
makes provision for the appointment of officers
and
the conferment, 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
Commissroner 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 :ind the Board, and shall also,
in such
cases :md such :natters 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 Commissioner or, in such cases
and such matters as the Provincial Government mav
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 GJses not provided for by clauses (a), (b)
am\ ( c) of sub-section (2), orders passed under this Act
or under rules m:i.de hereunder shall be appeabble in
such cases and to such authorities as
the Provincial
G@vernment may declare by rules
made in this behalf.
1957
The Slat. of Auam
v.
A.N. Kiawai
Du C. ].
1957
7'A. Storr of Atsam
v.
A. N. Kidwai
DllrC. J.
300
SUPREME COURT REPORTS
[1957]
( 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 befog in
force relating to the Excise Revenue. Under sub-s. (2)
els. (g), (h) and (i) 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
followed and the matters to be ascettained before any
S.C.R.
SUPREME COURT REPORTS
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
shops,
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 ·
wa:; brought into operation on April 1, 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
Legislat·1re 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 any 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
juri~diction until other provision in that behalf
is made by Act of the Provincial Legislature.
(3) There shall be paid to the members of any
tri'ounal .constituted
under
the
last
preceding
subsection, such salaries and allowances as· the Governor
exercising his individual judgment may determine, and
1957
Tiii State of Auant
v.
A..N. KitiuJ.i
Das C. J.
302
SUPREME COURT REPORTS
[1957]
1957
those salaries . and allowances . shall be charged on the
Th• Sta" of Assam revenues of ihe Prnvirice.
·
v.
A.'N. Kidwai
'-·
Das c. 'y.
It will be recalled that under s. 9 of the 1910 Act
the Board, which by, s. 3(2) thereof meant the Provincial
Government,
was
the final
appellate
authority.
· The Provincial Government wzs composed of ministers who were necessarily members of the Legislature.
In fact, in Assam the ministers used to function as the
Board and exercised 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. (I) prevented the K1ard, 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 boi\y to
exercise
that appellate
power.
Accordingly
Parliament, by sub-s. (2) of s. 296, empowered the Governor
of those
provinces where the appel\aie 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 otfier provision in that behalf was made
· . by the
Legislature.
In
exercise of powers
conferred
on him by sub-s. (2) of that section the Governor of
Assam constituted a single
member Tribunal called at
ilrst the
Board
and
later as the Assam Revenue
Tribunal. From time to time the personnel of this
tribunal was ·changed
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.
Suh-section (I) of s. 3 of the 1946 Act provided that
the · ~r.ovincial Government should constitute a tribunal ta -be called the Assam Revenue Tribunal consisrmg
oh~. President and two members. Sub-section (2)
S.C.R.
SUPREME COURT REPORTS
303
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 ss. 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 ves1td in the
Provincial
GoYernment 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 thev were
instituted before it. In exercise of powers so co~ferred
on it the Provincial Government constituted a three
member tribunal to
exercise
the
final
appellate
:rnthority ..
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 sav, 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 lay from the Deputy
Commissioner to the Excise Commissioner and from
1957
·.r h• Stal• of Assam
v.
A.N. Kidwai
Dase. J.
304
SUPREME COURT REPORTS
(1957]
1957
the latter to the three members tribunal constituted
Till Slah of Assam under the 1946 Act.
v.
A.I(. Kidwai
Dase.].
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 s. 1 (3). Section 3 of this 1948 Act runs
as follows :
3 ( 1) Subject t"' 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 immediatdy 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 cases
specified in section 7(2).
The drafting of this section is indeed curious, for
while sub-s. (1) starts with the words of reservation
S.C.R.
SUPREME COURT REPORTS
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 revic:w 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
forceThe 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 jurisdic~
tion 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
po;wer 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 guidancl." of the
authority
appointed
by
it
"as
contemplated bv
s. 3(3) ". The Act contains two schedules. Scheduie A
contains
five enactments,
namely,
the first four and
the ninth enactment referred to in the schedule of the
1957
T h1 Stale of Am1m
v.
A. N. Kidu111.i
DasC. J.
1957
T ht St aft of Assam
v.
A. N. Kidwai
Dase. J.
306
SUPREME COURT REPORTS
(1957]
1946 Act, and sch. B contains the remaining four enactments of the schedule to the
1946 Act. Under s. 3 the
appeals
ancl
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 speci lied
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.
Curiouslv
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 cancellatio!'
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 pteferred 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
S.C.R.
SUPREME COURT REPORTS
307
authority constituted by the
last mentioned Notification of 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 hut 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 A11thority and
the several Civil Rules hereinbefore referred to were
issued to the respondents to show cause why the writs
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. 2% (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 wandate
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
s. 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
1957
Th• State of ,1ssam
v. -.....
A.N. Kidwsi -
Dase.].-
1957
The Sta11 of .Assam
v.
A.N. Kidwai
D"' C. J.
308
SUPREME COURT REPORTS
[1957]
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 thats. 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
Rules came up for hearing
later on and were disposed of by another judgment of
the High Court pronounced on June 12, 1946, 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
hereinbefore
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 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 o!
the provinces such jurisdiction was, immediately before
the commencement of Part III of the Government of
S.C.R.
SUPREME COURT REPORTS
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,
immdiately befo:-e the commencement of Part III of
the Act, vested in the local Government. Accordingly
Parliament authorised 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
(Emr·· 40). Evidently Parliament did not intend that
the power to constitute a tribunai
so
conferred on
Proviricial
Legislatures of
thme
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
"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 Le~islature
to make "other provision in that behalf'. Indeed no
provision in that behalf was made by the Assam
Legislature until it enacted •he
1946 Act. We arc
unable, with great respect, to read into 5. 296(2) any
mandate requiring the Provincial Legislature to make
1957
Thi Slall ef Assam
\I •
.d. N. Kidwoi
Dase.].
1957
Tiu Stall. of bsam
. v.
;f. N. Kidwal
-·
DuC. J.
310
SUPREME COURT REPORTS
[1957}
11.lY provision. On the contrary it was left entirely t<>
the· Provincial Legislature in the provin~es referred t<>
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
ro constitute a tribunal and to fix a terminus a quo up
to which the Governor's tribunal could continue
t<>
function.
Learned counsel appearing for the respondents have
not sought to support the extreme construction put
upon s. 2%(2) by the High Court. They have, however,
pointed out that the Governor's
tribunal
was
to
continue until other 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 Legislature
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. 2% (2) but was conferred on it by
ss. 99 and 100 read with the relevant entries in List II
of the Seventh schedule, but they contended that the
provision that until in exercise of those powers the
Provincial
Legislature
constituted
a
tribunal the
Governor's 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 contentions. 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 behai£" need not necessarily relate
back to the constitution of a tribunal. Learned · counsel
S.C.R.
SUPREME COURT REPORTS
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 intendment 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 sub-section 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
beililg 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, thev
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 hereinbcfore 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. 2% (2) its purpose clearly was to authorise the
Governors of certain provinces to consitute a tribunal
and to prescribe a time limit up to which the tribunal
so constituted by him was to exercise the appellate
jurisdiction.
Bevond
this
the
sub-section was
not
intended to go. It was not concerned with the legislative
fi-100 s. CT. Tncii~/59
19!!7
Tiu: Stall of~.4JS1J111
v.
,4..N.·Kitlwoi
DllJ C. ].
1957
T 11' <Stall of !-41,..,
v.
,f, J(, IridlHi
DOJ C. J.
312
SUPREME COURT REPORTS
[1957]
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-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 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 Ac,t must be struck down on the ground that the
Provincial Legislature had not exercised its essential
legislative functions, under ss.