TMI Blog1957 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue Tribunal (Transfer of Powers) Act, 1948 (Assam Act No. 4 of 1948) which is hereinafter referred to as the 1948 Act and of the' validity of the notification No. Rex. 184/52/39 issued by the Governor of Assam on July 5, 1955, in exercise of powers conferred on him by sub-a. (3) of a. 3 of the said Act appointing the Commissioner of Hills Division and, Appeals as, the appellate authority under the 1948 Act. All the appeals were accordingly heard together. In order to correctly appreciate the question raised before us it is necessary at this stage to refer to certain relevant statutory provisions and rules. In 1910 was passed the Eastern Bengal and Assam Excise Act 1910 (E.B. aild Assam Act 1 of 1910) which is hereinafter called the 1910 Act. It is an Act to consolidate and amend the law in force in Eastern Bengal and Assam relating to the import, export, transport, manufacture, sale and possession of intoxicant liquor and intoxicant drug,%. Sub-section (2) of s. 3 as amended and adapted, defines Board -as meaning the Provincial Government of Assam. Chapter II of the Act deals with establishments and control. Section 8 makes provision for the appointment of off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... method of levy of such duty. Chapter VI makes provision for the form and the conditions of grant of licences permits and passes. Section 28 of this chapter makes it obligatory on the Collector to take such measures as may best enable him to ascertain local public opinion in, regard to the licensing and location of shops. Section 29 makes provision for the cancellation or suspension of licences, permits or passes. Under s. 32 no person to whom a licence has been granted shall have any claim to the renewal of such licence or any claim to compensation on the determination thereof Chapter VII lays down general provisions. Included in that chapter is s. 36, which confers power on the Provincial Government to make rules for the purpose of carrying out the provisions of the Act or any other law for the time being in force relating to the Excise Revenue. Under sub-s. (2) els. (g), (h) and (1) of this section specific power is given to the Provincial Government to make rules regulating the periods for which and, the persons to whom licences for the sale of any intoxicant may be granted, prescribing the procedure to be followed and the matters to be ascertained before-any licence for such sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used to function as the Board and exercise the final appellate authority under s. 9 of the 1910 Act. The policy of Parliament was that-such practice must be discontinued and hence it introduced a prohibition against it by sub-s. (1) of s. 296 quoted above The intention of Parliament was not, however, to do away with the right of final appeal but to preserve it. The ban imposed by sub-s. (1) prevented the Board, meaning the Provincial Government, from functioning as the final appellate authority under the 1910 Act. Therefore, some provision had to be made to set up some other body to exercise that appellate power. Accordingly Parliament, by sub-s. (2) of s. 296, empowered the Governor of those provinces where the appellate authority was, prior to the commencement of that Act, vested in the Provincial Government, to constitute a tribunal to exercise the same jurisdiction. The tribunal so constituted by the Governor was to exercise jurisdiction until other provision in that behalf was made by the Legislature. In exercise of powers conferred on him by sub-s. (2) of that section the Governor of Assam constituted a single member Tribunal called at first the Board and later as the Assam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the latter to the one member tribunal constituted by the Governor of Assam and after the enactment of the 1946 Act, Which abolished the Governor's tribunal, appeals 1 say from the Deputy Commissioner to the Excise Commissioner and from the latter to the three member tribunal constituted under the 1946 Act. On April 5, 1948, a High Court was established for the province of Assam. On April 6, 1948, the Assam Revenue Tribunal (Transfer of Powers) Act, 1948 (Assam IV of 1948), received the assent-of the Governor of Assam. It was published in the official gazette on April 8, 1948, and was brought into force on the same day by a notification issued by the Provincial Government under a. 1 (3). Section 3 of this 1948 Act runs as follows: 3 (1) Subject to the provisions of sub-section (3) of this section the Assam High Court shall exercise such 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 jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction transferred by this Act to the High Court and the aforesaid authority respectively and shall be decided as if they were instituted before the Assam High Court or the authority as the case may be. It is difficult to appreciate the propriety of the use of the word 'deemed' in sub-s. (1) of s. 7 and this vagueness has given rise to some argument before us which will be dealt with later on.- Section 8 confers power on the Assam High Court to make rules by notification in the official gazette consistent with the provisions of this Act for carrying out the purpose of this Act and like power is conferred on the Provincial Government to make rules for the, guidance of the authority appointed by it as contemplated by s. 3 (3) . The Act contains two schedules. Schedule A -contains five enactments, namely, the first four and the ninth enactment referred to in the schedule of the 1946 Act, and sch. B contains the remaining four enactments of the schedule to the 1946 Act. Under s. 3 the appeals and revisions arising out of the enactments specified in sch. A are to be dealt with by the High Court and those arising out of the enactments specified in sch. B are to be dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority referred to in s. 3 (3) to review its own decision or order under certain conditions. Section 7 provides for the abolition of the Assam Revenue Tribunal and the disposal of pending cases before the same. It runs as follows: 7 (1) From the date on which this Act comes into force- The Assam Revenue Tribunal shall be deemed to have been abolished and the President and members thereof shall be deemed to have relinquished their posts as President and members of the Tribunal. (2)The appeals and applications for revision pending before the said Tribunal on the date on which this Act comes into force shall be deemed to have been instituted before the Assam High Court or the authority referred to in s. 3 (3) according to the field of jurisdiction transferred by this Act to the High Court and the aforesaid authority respectively and shall be decided as if they were instituted before the Assam High Court or the authority as the case may be. It is difficult to appreciate the propriety of the use of the word 'deemed' in sub-s. (1) of s. 7 and this vagueness has given rise to some argument before us which will be dealt with later on.- Section 8 confers power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 but made orders for the grant of licences to third parties who were also claimants for such licences. Parties dissatisfied with the order made by the appellate authority filed petitions under Art. 226 of- the Constitution of India for appropriate writs quashing the orders of the Appellate Authority and, the several Civil Rules herein before referred to were issued to the respondents to show cause why the write prayed for should not be issued. Civil Rules Nos. 26, 31, 32 and 33, all of 1956, were taken up for hearing together by the High Court. At the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site certificate from the High Court as herein before mentioned. The main attack on the part of the State of Assam was directed against the High Court's view that s. 3(3) of the 1948 Act was void on the two grounds referred to in the judgment. As already indicated the principal theme running throughout that judgment was that s. 296(2) of the Government of India Act, 1935 had placed an obligation on the Provincial Legislature to constitute a tribunal. We are unable to accept this reading of that section. The purpose of s. 296 was to deal with courts of appeal in revenue cases. By sub-s. (1) it imposed a ban on the members of the Federal or Provincial Legislature and prohibited them from becoming members of any tribunal in British India having jurisdiction to entertain appeals or revise decisions in revenue cases. It appears that in some of the provinces such jurisdiction was, immediately before the commencement of Part III of the Government of 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 maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondents have not sought to support the extreme construction put upon s. 296(2) by the High Court. They have, however, pointed out that the Governor's tribunal was to continue until other provision in that behalf was made by the Provincial Legislature and contended that some meaning must be given to the words in that behalf . They argued that those words related back and referred to the constitution of the tribunal by the Governor, that so read the meaning of the subsection plainly was that the Governor's tribunal was to continue to function until the Provincial Legislate are made other provision for the constitution of a tribunal of its own. They conceded that the power of the Provincial Legislature to constitute a tribunal was not derived from s. 296 (2) but was conferred on it by ss. 99 and 100 read with the relevant entries in List 11 of the Seventh schedule, but they contended that the provision that until in exercise of those powers the Provincial Legislature constituted a tribunal the Governors tribunal would continue clearly indicated that the Governor's tribunal was to be a temporary body and this circumstance impliedly imposed on the Provincial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e need not, however, base our decision on those considerations, for on a plain reading of s. 296 (2) its purpose clearly was to authorize the Governors of certain provinces to constitute a tribunal and to prescribe a time limit up to which the tribunal so constituted by him was to exercise the appellate jurisdiction. Beyond this the sub-section was not intended to go, It was not concerned with the legislative powers of the Provincial Legislatures which had ,already been prescribed by ss. 99 and 100 read with List 11 of the Seventh schedule. It imposed no compulsion on the Provincial Legislatures to make any law or to impose any restriction whatever on the legislative powers of the Provincial Legislatures. The critical concluding clause in sub-s. (2) only fixed a terminus a quo and did nothing further. Even assuming that the construction suggested by learned counsel for the respondents were to be accepted, namely, that s. 296 (2) imposed an obligation on the Provincial Legislature to constitute a tribunal, we take the view, for reasons to be presently stated, that obligation has in substance been fully discharged by s. 3(3) of the 1948 Act and this leads us to a consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t one has to have a clear conception of the circumstances in which and the purpose for which that statute came to be enacted. It will be recalled that there was the 1910 Act dealing with the excise law in force in Eastern Bengal and Assam. That Act set out a hierarchy of appellate authority as will appear from s. 9(2) of that Act hereinbelow quoted. Then came the Government of India Act, 1935, s. 296(2) of which authorised the Governor to constitute a tribunal to exercise the appellate jurisdiction that was, immediately before the commencement of that Act, being exercised by the Provincial Government. The Governor's tribunal was to exercise such jurisdiction until the Provincial Legislature made other provision with respect thereto. By the 1946 Act the Assam Legislature made other provision- for the exercise of the final appellate powers by the tribunal constituted by the Provincial Government in exercise of the powers conferred on it by s. 3 of that Act. Jurisdiction was conferred on the Tribunal to entertain appeals and revise decisions in all revenue cases arising under the provisions of the nine enactments specified in the schedule thereto, and in all cases which stood tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions of the Act it is quite clear that the Assam Legislature had applied its mind and determined that the Assam Revenue Tribunal constituted under the 1946 Act should be abolished; that the Legislature applied its mind and further determined that the jurisdiction and powers of the Assam Revenue Tribunal should be distributed between two bodies, namely, those specified in schedule A should go to the High Court and those specified in schedule B to the Authority referred to in s. 3(3). At one stage of the arguments an endeavour was made to find out a rational basis of the distribution of the appellate powers between the two bodies. It was stated that the appeals or revisions in which Government was interested were sent to the High Court. A reference to the enactments in the schedules does not bear out this basis of distribution, for the Government may quite clearly be interested in appeals and revisions arising under the Assam Forest Regulation, which is assigned to schedule B as item (iii) thereof. It was also said that the appeals and revisions with respect to revenue matters have been assigned to the High Court. But some of the enactments specified in sch. B relate to reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act was only to distribute the appellate powers as recited in its preamble. It was argued that by this Act the legislature did not itself constitute a tribunal nor authorise the Provincial Government to set up a tribunal. It was further contended that assuming that the legislature had authorised the Provincial Government to set, up a tribunal then there had been an excess of delegation of legislative power. We are unable to accept the correctness of this alternative argument. There is no particular form of expression that is necessary for constituting a tribunal. The Assam High Court was undoubtedly an existing tribunal, but apart from s. 3(1) and (2) that High Court was not an appellate authority having jurisdiction to entertain appeals and revise decisions in all revenue cases arising under the provisions of the enactments specified in schedule A to the Act. It is the 1948 Act which, by sub-ss. (1) and (2) of s. 3, constitutes the Assam High Court as the appellate authority for exercising such Jurisdiction and this it has done by simply saying that the Assam High Court shall exercise such jurisdiction or the Assam High Court shall have jurisdiction to entertain appeals and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Assam Act XVII of 1947 (Sales Tax Act),Section 30. 9. Bombay- Act V of 1946 (Sales Tax Act),Section 21. 10. Bengal Raw Jute Taxation Act (XI of 1941),Section 21. 11. Extra Provincial Jurisdiction Act, 1947 (Central Act XLVII of 1947), Sections 3 and 4. 12. Garo Hills Regulation I of 1882, Section 6. 13. Assam Requisition and Control of Vehicles Act (Act XXXII of 1950), section 9. 14. Assam Adhiars Protection and Regulation Act, 1948 (Act XII of 1948), Section 9. 15. Assam Forest Product Acquisition Act (XXXI of 1950), Section 7. Appointed does not necessarily mean already appointed. It may also mean to be appointed at any future time. When a person is appointed by the Provincial Government after the date of the Act, he may immediately thereafter be well described as a person appointed by the Provincial Government. It is next suggested that even if the legislature itself constituted the authority it, nevertheless,, delegated essential legislative functions with respect to the appointment of members, for the legislature had not laid down any policy or principle as to the number, qualification, remuneration or period of service of persons to be appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied by the Provincial Government and that there was no provision in s. 9 for any appeal to the Commissioner of a Division against the orders of the Excise Commissioner. This is true enough, but the Board meaning the Provincial Government bad been superseded by s. 296(2) of the Government of India Act, 1935, whereby the Assam Revenue Tribunal was constituted by the Governor as the authority to entertain appeals and revisions from the Excise Commissioner. The Governor's tribunal was replaced by the Assam Revenue Tribunal constituted under the 1946 Act, which in its turn was replaced by two authorities, namely, the Assam High Court and the Authority referred to in s. 3(3) of the 1948 Act. We see no impropriety in the Commissioner of Hills Division and Appeals, assuming that he is the same as the Commissioner of a Division, being appointed as the authority to entertain appeals from the Excise Commissioner. It is true that appeal from the decision of the Commissioner of a Division in matters specified by the Provincial Government lay initially to the Board and thereafter to the Governor's tribunal and then to the Assam Revenue Tribunal and finally to the tribunal referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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