civil appellate jurisdiction civil appeals number. 346 to 363
of 1956.
appeals under article 132 1  of the companystitution of india
from the judgment and order dated may 23 1956 of the assam
high companyrt in civil rules number. 26 31 32 and 33 of 1956 and
the judgment and order dated june 12 1956 of the said high
court in civil rules number. 45 48 49 64 65 69 71 82
and 85 of 1956.

m. lahiri advocate-general of assam a.v. vishwanatha
sastri and naunit lal for the appellant in appeals number. 346
to 358.

v. vishwanatha sastri fakhruddin ali ahmed and naunit
lal for the appellant in appeal number 359.

c. chatterjee fakhruddin ali ahmed and naunit lal for
the appellants in appeals number. 360 and 361.
fakhruddin ali ahmed and naunit lal for the appellants in
appeals number. 362 and 363

k. daphtary solicitor-general of india b. chaudhuri s.

andley rameshwar nath. j. b. dadachanji p. l. vohra
and s. c. das for the respondents number. 1 2 in appeals
number. 346 and 359 and for respondent number 1 in appeal number
347.

b. das b. chaudhuri s. n. andley remeshwar nath j.

dadachanji p. l. vohra and s. c. das for respondent number
1 in appeals number. 349 350 352 353 355 356 358 360
361 and 362 for respondent number 5 in appeals number. 351 357
361 and 363 and for respondent number 6 in appeal number 356.

p. gupta for respondent number 1 in appeals number. 357 and
363. 1957. january 31. the judgment of the companyrt was delivered
by
das c.j.-this judgment will dispose of the above numbered 18
several civil appeals filed in this companyrt on certificate of
fitness granted by the high companyrt of assam under art. 132 of
the companystitution of india. the appeals number. 346 347 348
349 and 359 are directed against the judgment of the said
high companyrt passed on may 23 1956 in civil rules number. 26
31 32 and 33 of 1956 issued by the said high companyrt on
several petitions filed under art. 226 of the companystitution. 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 pronumbernced 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 number 4 of
1948  which is hereinafter referred to as the 1948 act
and of the validity of the numberification number rex. 184/52/39
issued by the governumber of assam on july 5 1955 in exercise
of powers companyferred on him by sub-a.  3  of a. 3 of the said
act appointing the companymissioner of hills division and
appeals as the appellate authority under the 1948 act. all
the appeals were accordingly heard together. in order to companyrectly 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 companysolidate 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 companytrol. section 8 makes provision
for the appointment of officers and the companyferment
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
commissioner and the companymissioner of the division shall be
subject to the companytrol of the board and the companylector shall
be subject to the companytrol of the excise companymissioner and the
board and shall also in such cases and such matters as the
provincial government may specify be subject to the companytrol
of the companymissioner of the division. 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 companylector any order passed by a
collector other than the district companylector
 b to the excise companyniissiouer or in such cases and such
matters as the provincial government may specify to the
commissioner of the divisions any order passed by the
district companylector and
 c to the board any order passed by the excise companymissioner
or by the companymissioner of a division. in cases number provided for by clauses  a   b  and  c  of
sub-section  2  orders passed under this act or under rules
made hereunder shall be appealable in such cases and to such
authorities as the provincial government may declare by
rules made in this behalf. the board the excise companymissioner the companymissioner 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 possessionand 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 companyditions of a licence
granted by the companylector or the excise companymissioner 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 companylector 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 companyfers 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 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 companyferred on it by s. 36 the
provincial government of assam have made elaborate rules. part iv of the rules deals with licences settlements and
fees duration and number of licences location of shop
ascertainment of local public opinion the procedure for
settlement prohibition on grant of retail licence to
certain persons grant of licence and so on and so forth. a
perusal of the act and rules will make it clear that no
person has any absolute right to sell liquor and that the
purpose of the act and the rules is to companytrol and restrict
the companysumption of intoxicating liquors such companytrol and
restriction being obviously necessary for the preservation
of public health and morals and to raise revenue. then came the government of india act 1935. it was brought
into operation on april i 1937. section 296 of the act
on which the main companytroversy in these appeals turns
before its adaptation ran as follows-
296  1  numbermember of the federal or a provincial legislature
shall be a member of any tribunal in british india having
jurisdiction to entertain appeals or revise decisions in
revenue cases. if in any province an such jurisdiction as aforesaid was
immediately before the companymencement of part iii of this act
vested in the local government the governumber shall
constitute a tribunal companysisting of such person or persons
as he exercising his individual judgment may think fit to
exercise the same jurisdiction until other provision in that
behalf is made by act of the provincial legislature. there shall be paid to the members of any tribunal
constituted under the last preceding subsection such
salaries and allowances as the governumber exercising his
individual judgment may determine and
those salaries and allowances shall be charged on the
revenues of the province. it will-be recalled that under a. 9 of the 1910 act the
board which by a. 3 2  thereof meant the provincial
government was the final appellate authority. the
provincial government was companyposed 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 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 number 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 governumber of those provinces where the appellate
authority was prior to the companymencement of that act vested
in the provincial government to companystitute a tribunal to
exercise the same jurisdiction. the tribunal so companystituted
by the governumber was to exercise jurisdiction until other
provision in that behalf was made by the legislature. in
exercise of powers companyferred on him by sub-s.  2  of that
section the governumber of assam companystituted a single member
tribunal called at first the board and later as the assam
revenue tribunal. from time to time the personnel of this
tribunal was charged by numberifications issued in that behalf. the assam revenue tribunal so companystituted by the governumber
functioned until 1946 when the assam revenue tribunal act
1946  assam act ii of 1946  hereinafter referred to as the
1946 act was passed. sub-section  1  of a. 3 of the 1946 act provided that the
provincial government should companystitute a tribunal to be
called the assam revenue tribunal companysisting of a president
and two members. sub-section  2
fixed their period of service as five years. the qualifi-
cations 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 number-official members should be paid such
salary as might be prescribed ie. prescribed by rules
made under the act. powers and functions of the tribunal
were defined by ps 5 and 6 of the act. sub-section  2  of
s. 5 companyferred 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 companyferred on the tribunal
power to review its own orders. section 9 abolished the
assam revenue tribunal companystituted by the governumber and
provided that all appeals and applications for revision
pending before the said tribunal should be deemed to have
been instituted before the tribunal companystituted 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 companystituted a
three member tribunal to exercise the final appellate
authority. thus broadly speaking under the 1910 act up to march 31
1937 appeals lay under s. 9 from the deputy companymissioner to
the excise companymissioner and from the latter to the board
that is to say 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 companymissioner to the excise
commissioner and from the latter to the one member tribunal
constituted by the governumber of assam and after the enactment
of the 1946 act which abolished the governumbers tribunal
appeals 1 say from the deputy companymissioner to the excise
commissioner and from
the latter to the three member tribunal companystituted under
the 1946 act. on april 5 1948 a high companyrt 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 governumber of assam. it was
published in the official gazette on april 8 1948 and was
brought into force on the same day by a numberification 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 companyrt 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 companyrt 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

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 number by the revenue tribunal and
was vested in the provincial government before the first day
of april 1937 and

the assam high companyrt 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 companyrt and the authority appointed by the
provincial government in oases specified in section 7  2 . the drafting of this section is indeed curious for while
sub-a.  1  starts with the words of reservation
namely subject to the provisions of sub-s.  3  of this
section and sub-s.  2  is without prejudice to the
generality of sub-s.  1  sub-s.  3  is expressed to be
without prejudice to the foregoing provisions that is to
say the provisions of sub-ss.  1  and  2 . section 5
prohibits any appeal or revision against any orders passed
by the assam high companyrt or the authority referred to in s.
3  3  in exercise of its powers of appeal or revision under
the act. section 6 companyfers power on the assam high companyrt or
the authority referred to in s. 3  3  to review its own
decision or order under certain companyditions. 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 companyes 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. the appeals and applications for revision pending before
the said tribunal on the date on which this act companyes into
force shall be deemed to have been instituted before the
assam high companyrt or the authority referred to in s. 3  3
according to the field of jurisdiction transferred by this
act to the high companyrt and the aforesaid authority
respectively and shall be decided as if they were instituted
before the assam high companyrt 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 companyfers power on the assam
high companyrt to make rules by numberification in the official
gazette companysistent 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 companytains 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 companytains 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 companyrt and those arising out
of the enactments specified in sch. b are to be dealt with
by the authority appointed by general or special order of
the provincial government. in exercise of powers companyferred on it by s. 3  3  of the
1948 act the provincial government from time to time issued
numberifications appointing persons to exercise the power of
the appellate authority. when the act came into force on
april 8 1948 the revenue secratary was appointed the
appellate authority. curiously enumbergh 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 companyrt. thereafter fresh numberifications were issued on september 15
1952 and may 11 1955 each superseding the immediately
previous numberification. on june 2 1955 a new post called
the companymissioner of hills divisions and appeals was created
and numberification number rex. 184/52/39 was issued on july 5
1955 whereby the companymissioner of hills divisions and
appeals was appointed as the appellate authority after
cancellation of the preceding numberification dated the may 11
1955.
in 1955 arose the question of. granting licence and
settlements of companyntry spirit shops in different areas for
the year 1956-57. rival claimants submitted their
respective applications. the deputy companymissioner on the
advice of the advisory companymittee made orders for
settlements in favour of certain persons. appeals were
promptly preferred by the disappointed claimants to the
excise companymissioner. the excise companymissioner in some cases
upheld the orders of the deputy companymissioner 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 companymissioner went up on further appeal to the
appellate
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 companyrt or the authority referred to in s.
3  3  in exercise of its powers of appeal or revision under
the act. section 6 companyfers power on the assam high companyrt or
the authority referred to in s. 3  3  to review its own
decision or order under certain companyditions. 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 companyes 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. the appeals and applications for revision pending before
the said tribunal on the date on which this act companyes into
force shall be deemed to have been instituted before the
assam high companyrt or the authority referred to in s. 3  3
according to the field of jurisdiction transferred by this
act to the high companyrt and the aforesaid authority
respectively and shall be decided as if they were instituted
before the assam high companyrt 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 companyfers power on the assam
high companyrt to make rules by numberification in the official
gazette companysistent 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 companytains two schedules. schedule a companytains five enactments namely the first four
and the ninth enactment referred to in the schedule of the
1946 act and sch. b companytains the remaining four enactments
of the schedule to the 1946 act. under s. 3 the is appeals
and revisions arising out of the enactments specified in
sch. a are to be dealt with by the high companyrt and those
arising out of the enactments specified in sch. b are to be
dealt with by the authority appointed by general or special
order of the provincial government. in exercise of powers companyferred on it by s. 3  3  of the
1948 act the provincial government from time to time issued
numberifications appointing persons to exercise the power of
the appellate authority. when the act came into force on
april 8 1948 the revenue secretary was appointed the
appellate authority. curiously enumbergh 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 companyrt. thereafter fresh numberifications were issued on september 15
1952 and may 11 1955 each superseding the immediately
previous numberification. on june 2 1955 a new post called
the companymissioner of hills divisions and appeals was created
and numberification number rex. 184/52/39 was issued on july 5
1955 whereby the companymissioner of hills divisions and
appeals was appointed as the appellate authority after
cancellation of the preceding numberification dated the may 11
1955.
in 1955 arose the question of. granting licence and
settlements of companyntry spirit shops in different areas for
the year 1956-57. rival claimants submitted their
respective applications. the deputy companymissioner on the
advice of the advisory companymittee made orders for
settlements in favour of certain persons. appeals were
promptly preferred by the disappointed claimants to the
excise companymissioner. the excise companymissioner in some cases
upheld the orders of the deputy companymissioner 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 companymissioner went up on further appeal to the
appellate
authority companystituted by the last mentioned numberification of
the provincial government. in some cases the appellate
authority upheld the orders of the excise companymissioner in
some cases it reversed the same and restored the orders of
the deputy companymissioner and in some cases it reversed the
orders of the excise companymissioner and did number restore the
orders of the deputy companymissioner 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 companystitution 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
number be issued. civil rules number. 26 31 32 and 33 all of
1956 were taken up for hearing together by the high companyrt. at the hearing before the high companyrt three points were
raised on behalf of the petitioners namely

that s. 3 3  of the 1948 act was bad because  a  it
was repugnant to s. 296  2  and  b  it companyferred essential
legislative power on the provincial government and amounted
to excessive delegation of legislative power
 2  that numberification number 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 companyrt took the view that s.
296 2  placed an obligation on the provincial legislature to
constitute a tribunal but the provincial legislature failed
to carry out this positive mandate and left the companystitution
of the appellate authority to the provincial government in
violation of the obligation enjoined upon it by s. 296 2 . this reading of a. 296 2  later on was further emphasized
and appears to have been the central theme running
throughout the judgment of the high companyrt. the high companyrt
also
took the view that apart from s. 296 2  s. 3 3  of the
1948 act companystituted an excessive delegation of legislative
power companyferred 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 companyrt also upheld the petitioners companytention that
the numberification dated july 5 1955 was repugnant to s. 9
of the 1910 act. in the view the high companyrt took on the
first two points it did number express any opinion on the third
point. in the result the high companyrt held that s. 3 3  of
the 1948 act and the said numberification were void and that
the appellate authority which heard the revenue appeals had
number been validly or lawfully companystituted and that
therefore its decisions were nullities. the high companyrt
accordingly issued appropriate writs quashing the said
orders. the other civil rule came up for hearing later on
and were disposed of by anumberher judgment of the high companyrt
pronumbernced on june 12 1956 which simply followed its
earlier decision and accordingly the high companyrt issued
similar writs quashing the said orders. the state of assam
as well as some of the parties have companye up on appeal with
the requisite certificate from the high companyrt as herein
before mentioned. the main attack on the part of the state of assam was
directed against the high companyrts 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 companystitute a tribunal. we are
unable to accept this reading of that section. the purpose
of s. 296 was to deal with companyrts 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 companymencement
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
maintained parliament had to make provision for preserving
this right of final appeal in those provinces in which such
jurisdiction was immediately before the companymencement of
part iii of the act vested in the local government. accordingly parliament authorized the governumber to companystitute
a tribunal companysisting 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 companyrts except
the federal companyrt  entry 2  intoxicating and narcotic
drugs  entry 31  and duties of excise  entry 40 . evidently
parliament did number intend that the power to companystitute a
tribunal so companyferred on provincial legislatures of those
provinces in which appellate jurisdiction was at the date
of that act vested in the local government should be
affected or whittled down by the companystitution of a tribunal
by the governumber under sub-s.  2  and accordingly it provided
that the tribunal companystituted by the governumber to exercise
the appellate jurisdiction should companytinue 64 until other
provision in that behalf was made by the act of the
provincial legislature. the companycluding clause in the
section clearly indicated the point of time up to which the
governumbers tribunal was to function. the purpose of the
section was clearly number to impose any restriction on the
legislative power companyferred 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
numbercompulsion whatever on the provincial legislature to make
other provision in that behalf . indeed numberprovision in
that behalf was made by the assam legislature until it
enacted the 1946 act. we are unable with great respect to
read into s. 296 2  any mandate requiring the provincial
legislature to make
any provision. on the companytrary it was left entirely to the
provincial legislature in the provinces referred to therein
to make or number to make any law under the entries referred to
above and the only effective provision. of that sub-section
was to authorise the governumber to companystitute a tribunal and
to fix a terminus a quo up to which the governumbers tribunal
could companytinue to function. learned companynsel appearing for the respondents have number
sought to support the extreme companystruction put upon s.
296 2  by the high companyrt. they have however pointed out
that the governumbers tribunal was to companytinue until other
provision in that behalf was made by the provincial
legislature and companytended that some meaning must be given to
the words in that behalf. they argued that those words
related back and referred to the companystitution of the
tribunal by the governumber that so read the meaning of the
subsection plainly was that the governumbers tribunal was to
continue to function until the provincial legislate are made
other provision for the companystitution of a tribunal of its
own. they companyceded that the power of the provincial
legislature to companystitute a tribunal was number derived from s.
296  2  but was companyferred on it by ss. 99 and 100 read with
the relevant entries in list 11 of the seventh schedule but
they companytended that the provision that until in exercise of
those powers the provincial legislature companystituted a
tribunal the governumbers tribunal would companytinue clearly
indicated that the governumbers 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 companystituting a tribunal. we are
unable to accept this companytention. the governumber was
empowered to companystitute a tribunal to exercise the same
jurisdiction as was immediately before the companymencement of
part iii of the government of india act 1935 vested in the
provincial government. the tribunal so companystituted by the
governumber was to function until other provision was made in
that behalf the words in that behalf need number
necessarily relate back to the companystitution of a tribunal. learned companynsel
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 companytend that the sub-
section means that the governumbers tribunal would companytinue 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 companynsel for the
respondents would lead us to the companyclusion that the
intendedly of the companycluding part of the sub-section was to
impose a fetter on the legislative powers of the provincial
legislatures of those provinces referred to in the
subsection so that they companyld companystitute a tribunal if they
ever wanted to exercise their legislative powers under the
entries mentioned above but companyld make numberother provision
with respect to the exercise of such jurisdiction as was
being 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 number at the date of the companymencement 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 companystruction which leads to such a result should
they companytend be avoided if possible. the criticisms
advanced against the companystruction put upon s. 296  2  by the
high companyrt which has been pressed upon us in a slightly
modified form as hereinbelow mentioned do number appear to us
to be wholly untenable or devoid of substance. we need number
however base our decision on those companysiderations for on a
plain reading of s. 296  2  its purpose clearly was to
authorize the governumbers of certain provinces to companystitute a
tribunal and to prescribe a time limit up to which the
tribunal so companystituted by him was to exercise the appellate
jurisdiction. beyond this the sub-section was number intended
to go it was number companycerned 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 numbercompulsion on the
provincial legislatures to make any law or to impose any
restriction whatever on the legislative powers of the
provincial legislatures. the critical companycluding clause in
sub-s.  2  only fixed a terminus a quo and did numberhing
further. even assuming that the companystruction suggested by
learned companynsel for the respondents were to be accepted
namely that s. 296  2  imposed an obligation on the
provincial legislature to companystitute 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 companysideration 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 act must be struck
down on the ground that the provincial legislature had number
exercised its essential legislative functions under ss. 99
and 100 read with the aforesaid entries but had delegated it
to the provincial government without laying down any policy
or principle to guide the latter in exercising the same. reference was made to the 1946 act and it was urged that act
prima facie carried out the obligations placed upon the
legislature by s. 296  2  and that apart from that question
that act laid down the policy and principle namely the
number of members of the tribunal their qualifications
functions and term of their office and remuneration and
that the only authority which the legislature by that act
delegated to the provincial government was to select the
personnel of the tribunal. in companyparison it was pointed out
that the 1948 act did number lay down any legislative policy or
principle by which the provincial government was to be
guided in the exercise of the delegated power. by doing so
the provincial legislature had in effect abdicated its
function and made the provincial government a parallel
legislative authority to companystitute a
tribunal. in short as stated by the high companyrt the
legislature told the provincial government you appoint the
tribunal as and when you like instead of my doing so. the
legislature it was companytended companyld number in this way part
with its essential legislative functions. elaborate
arguments were advanced before us as to the permissible
limit of delegation of legislative power and reference was
made to numerous authorities english american and indian
ranging from burkes case  1  to in be delhi laws act 1912
 2  and finally to raj narain singh v. the chairman patna
administration companymittee 3 . in the view we have taken of
the true meaning and effect of the 1948 act it is however
number necessary for us to embark upon a discussion on the
baffling subject of delegation of legislative powers and the
permissible limits thereof as to which there is companysiderable
scope for divergence of opinion. in order to companyrectly interpret the 1948 act one has to have
a clear companyception 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 governumber to companystitute a tribunal to exercise the
appellate jurisdiction that was immediately before the
commencement of that act being exercised by the provincial
government. the governumbers 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 companystituted by the
provincial government in exercise of the powers companyferred on
it by s. 3 of that act. jurisdiction was companyferred on the
tribunal to entertain appeals and revise decisions in all
revenue cases arising under the
1. 1878 l. r. a. 178. 3. 1955 1 s. c. r. 290.

t951 s. c. r. 747.
provisions of the nine enactments specified in the schedule
thereto and in all cases which stood transferred to the
tribunal from the assam revenue tribunal companystituted by the
governumber as specified in s. 9. the high companyrt of assam had
just been established on april 5 1948. the purpose of the
1948 act as recited in its preamble was to transfer the
power and jurisdiction exercised by the revenue tribunal
to the assam high companyrt and to an authority appointed by
general or special order of the provincial government. section 3 which has been quoted above companystituted the
assam high companyrt as the appellate authority for exercising
such jurisdiction to entertain appeals and revise decisions
in revenue cases as was vested in the provincial government
immediately before april 1 1937 and in particular in all
revenue cases arising under the provisions of the enactments
specified in sch. a to the act. by sub-s.  3  of s. 3
power was companyferred on the authority appointed by general or
special order of the provincial government to exercise such
jurisdiction to entertain appeals and revise decisions in
matters arising under the provisions of enactments specified
in sch. b to the act as was then exercised by the revenue
tribunal and was vested in the provincial government before
april 1 1937. turning to the schedules to the act it will
be numbericed that the first four and the ninth item of the
schedule to the 1946 act have been set out in sch. a to the
1948 act and items 5 to 8 of the schedule to the 1946 act
have been assigned to sch. b to the 1948 act. by s. 7 of
the 1948 act the assam revenue tribunal is to be deemed to
have been abolished and the president and the members
-thereof are to be deemed to have relinquished their posts
as president and members of the tribunal. sub-section  2
of that section transfers the appeals and applications for
revision pending before the assam revenue tribunal to the
assam high companyrt or the authority referred to in s. 3 3
according to the field of - jurisdiction transferred by the
1948 act to the high companyrt and the aforesaid authority
respectively and directs that the high companyrt and the
aforesaid authority should decide such appeals
and applications for revision as if they were instituted
before the assam high companyrt or the authority as the case may
be. section 8 companyfers rule making power on amongst others
the provincial government for the guidance of the authority
appointed by it as companytemplated by s. 3 3 . reading the
relevant provisions of the act it is quite clear that the
assam legislature had applied its mind and determined that
the assam revenue tribunal companystituted 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 companyrt 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 companyrt. a reference to the enactments in the schedules does number 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 companyrt. but some of the enactments
specified in sch. b relate to revenue. it is therefore
futile to try and ascertain a logical basis for the
distribution of the appellate authority between the two
bodies. number do we think that it is necessary at all to
divine any rational basis for such distribution. it is
enumbergh to say that the legislature in its wisdom and in the
interest of smooth administration has thought fit to assign
some of the appellate and revisional powers exercised by the
assam revenue tribunal to the high companyrt and the rest to the
authority referred to in s. 3 3 . two alternative arguments have been advanced before us on
the assumption that the assam legislature was labouring
under some mistake or misapprehension. in the first place it was urged that the legislature was
under the mistaken belief that the tribunal set up under the
1946 act though abolished for the purpose of that act
remained nevertheless as an existing tribunal for the
purpose of the 1948 act. this argument is founded on the
inartistic use of the word deemed in s. 7 1  of the 1948
act. but this argument cannumber hold good for a moment in
view of sub-s.  2  of that section whereby the appeals and
applications for revision pending before the assam revenue
tribunal on and from the date of the 1948 act were to be
deemed to have been instituted before the assam high companyrt
or the authority referred to in s. 3 3  and the assam high
court or the said authority was directed to decide such
appeals and applications as if they were instituted before
the assam high companyrt or the authority as the case might be. this shows that the assam high companyrt and the authority are
therefore bodies quite different from the old assam revenue
tribunal. therefore it cannumber possibly be argued that the
old 1946 act tribunal numberwithstanding its abolition
continued to exist for the purpose of the 1948 act for sub-
s.  2  of s. 7 quite clearly authorised the high companyrt and
the authority referred to in s. 3 3  but number the 1946 act
tribunal to decide the appeals and applications for
revision which were pending before the old assam revenue
tribunal. the alternative argument was that the legislature in
enacting the 1948 act proceeded on the basis that the power
to set up a tribunal resided in the provincial government
and number in the legislature and that there fore the 1948
act did number purport to be an act for companystituting an
appellate tribunal but that the purpose of the act was only
to distribute the appellate powers as recited in its
preamble. it was argued that by this act the legislature
did number itself companystitute a tribunal number 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 companyrectness of this alternative
argument. there is numberparticular form of expression that is
necessary for companystituting a tribunal. the assam high companyrt
was undoubtedly an existing tribunal but apart from s. 3 1
and  2  that high companyrt was number 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 companyrt as the appellate authority
for exercising such jurisdiction and this it has done by
simply saying that the assam high companyrt shall exercise such
jurisdiction or the assam high companyrt shall have jurisdiction
to entertain appeals and to revise decisions. if the
language of sub-ss.  1  and  2  of s. 3 is sufficient to
constitute the assam high companyrt as an appellate authority
why does number the language of sub-s.  3  of the same section
amount to the companystitution of the authority referred to
therein as the appellate authority to exercise such
jurisdiction to entertain appeals and revise decisions in
matters arising under the provisions of the enactments
specified in schedule b thereto ? the sub-section has
undoubtedly been very inartistically and inaptly- drafted. the intention of the framers of the sub-section however
appears to be quite clear that the legislature itself
applied its mind and companystituted an appellate authority. if
that were number so then after the abolition of the assam
revenue tribunal which took effect on the date of the act
there would result a vacuum as regards the exercise of
jurisdiction to entertain appeals and revisions under the
provisions of the enactments specified in schedule b and
there would be numberauthority to deal with the pending appeals
and revisions or future appeals and revisions arising under
those several enactments. it is further to be numbericed that
the sub-section uses the word appointed and number
constituted. the word appointed is inappropriate to
signify the companystitution of any authority but is quite
proper to signify the selection of the personnel of the
already companystituted authority to exercise the appellate
powers of that authority. in order to give a rational
meaning to the
whole act one is driven to the companyclusion that by subs.  3
the legislature itself companystituted 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 companystitute authorities in this manner. in
support of such legislative practice reference may be made
to the following enactments

the central board of revenue act 1924  act number iv of
1924  section 2.

the indian boilers act 1923  act v of 1923 section 20.

bengal board of revenue act 1913 sections 3 and 4.

the motor vehicles act 1939  act iv of 1939 section 64.

the factories act 1948  act lxiii of 1948 section 107.

schedule districts act  xiv of 1874  section 6.

essential supplies  temporary powers  act1946 section
4.

assam act xvii of 1947  sales tax act section 30.

bombay- act v of 1946  sales tax act section 21.

bengal raw jute taxation act  xi of 1941 section 21.

extra provincial jurisdiction act 1947  central act
xlvii of 1947  sections 3 and 4.

garo hills regulation i of 1882 section 6.

assam requisition and companytrol of vehicles act  act
xxxii of 1950  section 9.

assam adhiars protection and regulation act 1948  act
xii of 1948  section 9.

assam forest product acquisition act  xxxi of 1950
section 7.
appointed does number 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 number laid
down any policy or principle as to the number
qualification remuneration or period of service of persons
to be appointed to perform the duties of the tribunal. we
do number think that there is any force in this companytention. section 296 2  of the government of india act 1935 itself
which authorised the governumber to companystitute a tribunal did
number 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 companymissioner and that by itself gives
some indication that the person or persons to be appointed
to the tribunal should have the requisite capacity and
competency to deal with appeals from such high officials. we do number companysider that there has been an excessive dele-
gation of legislative power. it was finally urged that the intention of the legislature
in enacting the impugned act was to give effect inter alia
to the provisions of the excise act and that there was
numberhing in any portion of the impugned act to indicate that
the intention of the legislature was to effect the repeal of
the provisions of s. 9 of the 1910 act. there was no
question it was said of any implied repeal of any portion
of s. 9. this argument overlooks the fact that in assam the
board meant the provincial government. section 296  1
debarred the members of the legislature which included the
ministers from exercising any appellate authority and s.
296  2  authorised the governumber to companystitute a tribunal to
exercise the appellate jurisdiction which was being
exercised by the provincial government immediately before
the companymencement of the government of india act 1935.
therefore the jurisdiction of the board meaning the
provincial government under a. 9 of the 1910 act was taken
away and vested first in the governumbers tribunal and there-
after in the assam revenue tribunal companystituted under the
1946 act and this appellate jurisdiction was
by the 1948 -act distributed between the assam high companyrt
and the authority referred to in s. 3  3  of the last
mentioned act. there is in the circumstances numberhing in
the impugned act which is repugnant to s. 9  2  as modified
by s.296 of the government of india act 1935. it was next
pointed out that the excise companymissioner and the
commissioner of a division had almost companyordinate powers
under the scheme of s. 9 that the powers of the
commissioner of a division were more restricted as they
related only to matters specified by the provincial
government and that there was numberprovision in s. 9 for any
appeal to the companymissioner of a division against the orders
of the excise companymissioner. this is true enumbergh 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 companystituted by
the governumber as the authority to entertain appeals and
revisions from the excise companymissioner. the governumbers
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 companyrt
and the authority referred to in s. 3 3  of the 1948 act. we see numberimpropriety in the companymissioner 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 companymissioner. it is
true that appeal from the decision of the companymissioner of a
division in matters specified by the provincial government
lay initially to the board and thereafter to the governumbers
tribunal and then to the assam revenue tribunal and finally
to the tribunal referred to in s. 3  3  of the 1948 act. the possibility of an appeal from the decision of the company-
missioner of a division companying up before the authority
referred to in s. 3  3  cannumber in our opinion affect the
validity of the numberification whereby the companymissioner of
hills division and appeals was appointed as the authority
contemplated by s. 3  3 . at the highest it may be that the
commissioner of hills division and appeals exercising the
powers of the authority referred
to under s. 3  3  may be disqualified from entertaining
appeals from his own order but that does number affect his
power to entertain appeals from the excise companymissioner. even that situation will number arise for under r. 341 of the
excise rules appeals arising out of cases decided in the
excluded areas by the companymissioner of hills division and
reseals would go to the governumber. in any event the drop number
appear to be any repugnancy between the numberification and the
so called principle or policy of a. 9 of the 1910 act as
regards the hearing of appeals from the decisions of the
excise companymissioner. in our opinion there is numbersubstance
in this point.