There was some question raised before us as v. Ram Nares/!

t"' the provisions of sub-section (3) of the Assam High Court shall exercise such this section jurisdiction to entertain appeals and revise decisions in the Provincial as was vested Government immediatdy before the first day of April,. 1937 under any law for the time being in force. (2) In particular and without prejudice the Assam High generality of the foregoing provision jurisdiction to entertain appeals and Court shall have in all revenue cases arising under the revise decisions 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 diction the provisions of the enactments matters arising under 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 to entertain appeals and revise decisions ( 4) The Assam High Court and the authority appointed by Provincial Government shall have juris to entertain appeals and revise decisiOns within diction transferred by this the field of jurisdiction respectively the authority Act in cases appointed by specified in section 7(2). the Assam High Court and the Provincial Government The drafting of this section is indeed curious, for the words of reservation while sub-s. (1) starts with 1957 T h1 Stale of Am1m v. A. N. Kidu111.i DasC. J. S.C.R. SUPREME COURT REPORTS (2) is expressed foregoing provisions'', is without prejudice 'subject to the provisions of sub-s. (3) of namely section' and sub-s. generality of sub-s. ( 1 ), sub-s. (3) to be "without prejudice 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 re ferred 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: its own decision or order under cer s. 3(3)" tain conditions. Section 7 provides the abolition of the Assam Revenue Tribunal and the disposal of pending cases before the same. It runs as follows : to revic:w "7 (1) From the date on which this Act comes into force- The Assam Revenue Tribunal shall be deemed the President and members to have relinquished their posts have been abolished ; and ,thereof shall be deemed as President and ·members of the Tribunal. · appeals and applications (2) The instituted before 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 in s. 3 (3) according to the field of jurisdic~ the High Court and the tion transferred by this Act to aforesaid authority respectively and shall be decided as if they were the Assam High Court or the authority as the case may be." It is difficult to appreciate the propriety of the use ( 1) of s. 7 and of the word 'deemed' 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 provisions of this Act for carrying out the purpose of this Act and like power is conferred on the Provincial the guidancl." of the rules for Government to make authority contemplated bv two schedules. Scheduie A s. 3(3) ". The Act contains contains first four and the ninth enactment referred to in the schedule of the in the official gazette consistent with five enactments, namely, appointed in sub-s. "as . notification 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 enact ments of the schedule to the 1946 Act. Under s. 3 the appeals ancl the enactments revisions arising out of to be dealt with by the High specified those arising out of the enactments speci lied Court and in sch. B are the authority to be dealt with by appointed by general or special order of the Provincial Government. in sch. A are appointed In exercise of powers conferred on it by s. 3 (3) of the 1948 Act the Provincial Government from time to issued notifications appointing persons to exercise the Act the appellate authority. When the power of came into force on April 8, 1948, the Revenue Secretary appellate authority. Curiouslv enough, however, on June 15, 1948, the Minister of to the Government of Assam was appointed as Excise 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 the Assam High Court. Thereafter fresh notifications were issued on September 15, 1952, and May 11, 1955, each superseding mediately previous notification. On 1955, the Commissioner of Hills Divisions a new post called . created and Notification No. and Appeals was issued on July 5, 1955, whereby Rex. 184/52/39 was the Commissioner of Hills Divisions and Appeals was appointed as the appellate authority after cancellatio!' of the preceding notification dated the May 11, 1955. invalid by June 2, In 1955 arose the question of granting licence and in different areas settlements of country spirit shops for the year 1956-57. Rival claimants submitted respective applications. The Deputy Commissioner on the advice of the Advisory Committee made orders for in favour of certain persons. Appeals were. settlements promptly pteferred by the Excise Commissioner. The Excise Commissioner in some cases upheld the orders of the Deputy Com missioner and reversed his orders and licence to issue to some other claimants. The directed the Excise Com party dissatisfied with missioner went up on further appeal to the appellate the disappointed claimants the order of some cases 1957 Th• State of ,1ssam v. -..... A.N. Kidwsi - Dase.].- S.C.R. SUPREME COURT REPORTS 307 upheld the orders of last mentioned Notifica authority constituted by the In some cases the tion of the Provincial Government. the orders of the Excise appellate authority in some cases it reversed the same and Commissioner, restored the orders of the Deputy Commissioner and in some cases it reversed the orders of the Excise Commis sioner and did not restore the Deputy Commissioner hut made orders for the grant of licences third parties who were also claimants for such licences. Parties dissatisfied with the order made by filed petitions under Art. 226 the appellate authority for appropriate writs the Constitution of the orders of the Appellate A11thority and quashing 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. India 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 to s. 2% (2) and (b) it conferred legislative power on the Provincial Govern excessive delegation of (a) it was repugnant essential legislative power ; amounted (2) that Notification No. Rex. 184/52/39 issued on to the whole scheme and July 5, 1955, was policy of s. 9 of the 1910 Act ; and repugnant the power of (3) that assuming that s. 3(3) of the 1948 Act was to an end once appoint an appellate authority came the authority had been appointed. the Provincial Government obligation on On the first point the High Court took the view that the Provincial s. 296(2) placed an to constitute a tribunal but the Provincial Legislature this positive wandate failed to carry out Legislature and left the constitution of the appellate authority in violation of the obliga the Provincial Government tion enjoined upon reading of s. 296(2) later on was further emphasized and appears to have been the central theme running throughout the High Court. The High Court also judgment of it by s. 296(2). This 1957 The Sta11 of .Assam v. A.N. Kidwai D"' C. J. 308 SUPREME COURT REPORTS [1957] the view the High Court held to s. 9 of the 1910 Act. In said Notification were void and that, apart from s. 296(2), s. 3(3) of the 1948 Act constituted an excessive delegation of legisla tive 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 the High Court took on the first two points it did not express any opinion on the third point. result thats. 3(3) of the 1948 Act revenue appeals appellate authority which heard had not been validly or lawfully constituted and that, its decisions were nullities. The High Court therefore, accordingly the said for hearing orders. The other Civil Rules came up 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 the said orders. The State of Assam as well as some of the parties have come up on appeal with the requisite certificate as hereinbefore mentioned. .issued appropriate writs quashing similar writs quashing the High Court In running 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 judgment. As already to in indicated the principal judgment was throughout India Act, 1935 had s. 296(2) of the Government of placed an obligation on the Provincial Legislature constitute a tribunal. We are unable reading of that section. The purpose of s. 296 was deal with courts of appeal revenue cases. By the members of the sub-s. ( 1) it Federal or Provincial Legislature and prohibited from becoming members of any tribunal in British jurisdiction to entertain appeals or revise India having that in some o! .decisions the provinces such jurisdiction was, immediately before III of the Government of the commencement of Part in revenue cases. It appears imposed a ban on to accept 1957 Thi Slall ef Assam \I • .d. N. Kidwoi Dase.]. S.C.R. SUPREME COURT REPORTS 309 in List provinces individual jurisdiction. several entries the Governor judgment, might to constitute a tribunai local government, which for preserving this in which India Act, vested to be effect meant ministers, who of necessity had of the Legislature. Having imposed the ban members and at the same time intending that the right of final appeal should be maintained, Parliament had to make right of final appeal in provision jurisdiction was, the commencement of Part III of immdiately befo:-e the Act, vested in the local Government. Accordingly Parliament authorised to constitute a tribunal consisting of such person or persons as he, think fit, to exercising his In ss. 99 and 100 read exercise the same II Parliament had the Provincial Legislatures to make already authorised 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 so conferred on the power thme provinces in which Proviricial Legislatures of appellate that Act, in the local government should be affected or vested whittled down by the constitution of a tribunal by Governor under sub-s. it provided the Governor exercise continue should that behalf" was made by "until other provision in the Act of the Provincial Legislature. The concluding the point of clause in time up function. The purpose of the section was clearly not legislative power conferred on the Provincial Legislatures by ss. 99 and 100 read with Seventh schedule. Sub-section (2) of s. 296 imposed the Provincial Le~islature no compulsion whatever on Indeed no to make "other provision provision the Assam Legislature until •he 1946 Act. We arc unable, with great respect, to read into 5. 296(2) any to make mandate requiring the Provincial Legislature in that behalf'. that behalf was made by tribunal constituted by jurisdiction to which the aforesaid entries jurisdiction was, at (2) and accordingly the Governor's section clearly restriction on the appellate tribunal was the date of in list II of impose any it enacted indicated 1957 Tiu Stall. of bsam . v. ;f. N. Kidwal -· DuC. J. 310 SUPREME COURT REPORTS [1957} the contrary it was left entirely t<> 11.lY provision. On in the provin~es referred t<> the· Provincial Legislature to make or not therein referred to above and the only effective provi entries sion of that sub-section was to authorise the Governor ro constitute a tribunal and to fix a terminus a quo up t<> to which the Governor's function. tribunal could continue to make any law under the Governor's to function until 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, tribunal was pointed out the Governor's continue until other provision "in that behalf" was made by the Provincial Legislature contended that some meaning must be given to the words "in those words related that behalf". They argued back and referred to the constitution . of the tribunal that. so read the · meaning of the sub by the Governor, tribunal was section plainly was that the Provincial Legislature to continue made other provision for the constitution of a tribunal of its own. They conceded that the power of the Pro to constitute a tribunal was not vincial Legislature 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 provision those powers Provincial tribunal Governor's indicated to be a temporary imposed on body and this circumstance impliedly Provincial Legislature an obligation requiring exercise its power only for constituting a tribunal We this contentions. The Governor are unable was empowered to exercise 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 Legislature tribunal would continue clearly the Governor's tribunal was in exercise of constituted to constitute a tribunal jurisdiction as was, immediately that until to accept before a 19!!7 Tiu: Stall of~.4JS1J111 v. ,4..N.·Kitlwoi DllJ C. ]. S.C.R. SUPREME COURT REPORTS 311 suggest to exercise jurisdiction. the appellants tribunal In other words immediately, namely, legislative powers under the words "other provision in that behalf" may grammatically to the exercise of what preceded the same they contend that the sub-section means that the Governor's tribunal the jurisdiction until other would continue that is to say, other provision provision in that behalf, for or with respect the exercise of the same jurisdic tion was made by Act of the Provincial Legislature. It is pointed out the construction suggested by the respondents would lead us to learned counsel for 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 in the sub-section so that if they ever wanted they could constitute a to exercise the entries mentioned above but could make no other provision with respect to the exercise of such jurisdiction as was the Provincial Government at the beililg exercised by 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 appel the date of jurisdiction was not, commencement of Part III of the Government of India Act, 1935, being exercised by local government would be free to abolish the right of final appeal. A construction which leads to such a result should, contend, be criticisms if possible. The s. 296 (2) advanced against the construction put upon 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 reading of to authorise s. 2% (2) Governors of certain provinces to consitute a tribunal and to prescribe a time tribunal the appellate so constituted by him was jurisdiction. Bevond sub-section was not intended to go. It was not concerned with the legislative fi-100 s. CT. Tncii~/59 its purpose clearly was to exercise those considerations, limit up to which for on a plain avoided, 1957 T 11' <Stall of !-41,.., v. ,f, J(, IridlHi DOJ C. J. 312 SUPREME COURT REPORTS [1957] in sub-s. the Provincial Legislatures which had powers of already been prescribed by ss. 99 and 100 read with List II of the Seventh schedule. It imposed no com pulsion on to make any the Provincial Legislatures law or to impose any restriction whatever on the legis the Provincial Legislatures. The lative powers of critical concluding clause (2) only fixed a terminus a quo and did nothing further. Even assum ing that the construction suggested by learned counsel for the respondents were the Provincial s. 296 (2) Imposed an obligation on to constitute a tribunal, we take the view, Legislature for reasons that obligation to be presently stated, has in substance been fully discharged by s. 3(3) of the 1948 Act and this leads us to a consideration of second point founded on the doctrine of delegation of power. to be accepted, namely, It was said that apart from functions, under ss. 99 and 100 the questions whether the Pro s. 296 (2) contained a mandate and whether vincial 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 read with the aforesaid entries but had delegated to the Pro vincial 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 that Act prima facie carried out the obligations placed upon the legislature by s; 296 (2) and that apart that Act laid down the policy and from that question principle, namely, the number of members of the bunal, the only authority office and remuneration and that the · legislature by Provincial Government was to select the personnel of the tribunal. In comparison the 1948 Act did not lay down any legislative policy the Provincial Government was or principle by which to he guided of the delegated power. in effect By doing so abdicated its function and madt the Provincial Govern to constitute a legislative authority ment a parallel the Provincial Legislature had their qualifications, functions, and term of it was pointed out that Act delegated the exercise S.C.R. SUPREME COURT REPORTS 313 x957 , -- fT11e State of Assam v. A. N. J(idwai Das c. J. · . t d th t "b tribunal. In short, as stated by the High Court, the legislature told the Provincial Government " you l"l 1 d } i rn ms ea o appomt e n una as an w ien you my doing so." The legislature, it was contended, could not 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 Burah's case (1) ) and finally to Raj Narain Singh v. The Chairman, Patna Administration Committee (5 In the view we have taken of the true meaning and effect of the 1948 Act it is, however, not 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 considerable scope for divergence of opinion. to In re, Delhi Laws Act, 1912 (2 ). In order to correctly interpret the 1948 Act 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 hereinbefore 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 tha~ was, immediately before the commencement of that Act, being exercised by the Provincial Government. The Governor's jurisdiction until the tribunal was to exercise such Provincial Legislature made other provision with re~, pect thereto. By the 1946 Act the Assam Legislature made other provision for the exercise of the fina.l 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 I. (r87S] L. R. 5 I. A. r78. [1955] 1 s. c. R. 290. 3· 40

#2. [1951] S. C. R. 747· ' 314 SUPREME COURT REPORTS [1957] Th S ' . Das c. J. z957 - . , A tale o, v provisions of the nine enactments specified in the schedule thereto, and in all cases which stood trans- the Assam Revenue ferred to the Tribunal from A. N. Kidwai Tribunal constituted by the Governor as specified in s. 9. The High Court 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 powers and jurisdiction exercised by the revenue tribunal to the Assam High Court and to an authority appointed by general or special order of the Provincial Government. Section 3, which has been quoted above, constitute.d the Assam High Court 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 conferred 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 noticed 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 sehedule to the 1946 Act have been assigned to sch. B to the 194$ 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 Court or the authority referred to in s. 3(3) according -to the field of jurisdiction transferred by the 1948 Act to the High Court and the aforesaid authority respectively and directs that the High Court and the aforesaid authority should decide such appeals S.C.R. SUPREME COURT REPORTS 315 z957 A 51 , - 1 e a10 v. A. N. Kidwai Das c. J. . . and applications for revision as if they were instituted before the Assam High Court or the authority as the Th case may be. Sect10n 8 confers rule makmg power on, amongst others, the Provincial Government for the guidance of the Authority appointed by it as contemplated by s. 3(3). Reading relevant 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 Tri- two bodies, bunal should be distributed between 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 revenue. It is, therefore, futile to try and ascertain a logical basis for the distribution of the appellate authority between the two bodies. Nor do we think that it is necessary at all to divine any rational basis for such distribution. It is enough to say that the legislature in its wisdom and in the inter- est of smooth administration has thought fit to assign some of the appellate and revisional powers exercised by the Assam Revenue Tribunal to the High Court 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. 316 SUPREME COURT REPORTS [1957] Th h h 6 A '957 - Das c. J. h b l" h d " In the first place it was urged that the legislature was under the mistaken belief that the tribunal set up 1 h ior t e purpose ct t oug a o is e under t e 194 e Slate o Assam A. N.~idwai of that Act remained nevertheless as an existing tri- burn~l for the purpose of the 1948 Act. This argument is founded on the inartistic use of the word "deemed" ins. 7(1) of the 1948 Act. But this argument cannot 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 Court 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 Court or the Authority as the case might be. This shows that the Assam High Court and the Authority are, therefore, bodies quite different from the old Assam Revenue Tribunal. Therefore, it cannot possibly be argu<id that the old 1946 Act tribunal, notwithstanding its abolition, continued to exist for the purpose of the 1948 Act, for sub-s. (2) of s. 7 quite clearly authorised the High Court and the Authority referred to in s. 3(3) but not 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 not in the legislature and that, there fore, the 1948 Act did not purport to be an Act for constituting an appellate tribunal but that the purpose of the Act was only to distribute the appellate i•oWers as recited in its pr<iamble. It was argued tht1t 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 Govern ment 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 1957 T 114 Slat1 of Assam v • . A . .N. Xitfwai Dase. J. S.C.R. SUPREME COURT REPORTS 317 therein as jurisdiction is necessary for constituting a in schedule A to the Act. form of' expression argument. There is no particular 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 the provisions of the enactments cases arising under the 1948 Act It is specified which, by sub-ss. (1) and (2) of s. 3, constitutes Assam High Court as the appellate authority exercising such. jurisdiction and 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 to revise decisions. If the language of sub-ss. (1) and (2) of s. 3 is sufficient the Assam High Court as an appellate to constitute authority why does not the language of sub-s. (3) of the to the constitution of the Autho same section amount the appellate authority to rity referred exercise entertain appeals and in matters arising under the provisions revise decisions thereto ? inartis The sub-section has undoubtedly been very inaptly tically and to be framers of itself applied its mind quite clear that the legislature If and constituted an appellate authority. that were the abolition of the Assam Revenue not so then after the date of the Act, Tribunal, which took effect on 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 no authority pending appeals and revisions or future appeals and revisions arising under those several enactments. It is further to be noticed word "appointed" and not "constituted". The word the constitution inappropriate to signify "appointed" of any authority but to signify is quite proper selection of the personnel of the already constituted authority authority. In order to give a rational meaning to the sub-section, however, appears the appellate powers of the enactments specified the sub-section uses in schedule B to deal with drafted. The intention of to exercise .... ' 1957 Thi State of Assam v. A.N. Kidwai Das C. ]. 318 SUPREME COURT REPORTS [1957] the legislature itself constituted it to the Provincial Government that by sub whole Act one is driven to the conclusion the authority and s. (3) only left to appoint persons to man that authority and to perform the duties to be the usual practice of that authority. of Indian manner. In support of such legislative practice refer ence may be made to the following enactments : legislatures , to constitute authorities It appears

#1. The Central Board of Revenue Act, 1924 (Act No. IV of 1924), Section 2.

#2. The Section 20. Indian Boilers Act, 1923 (Act V of 1923),

#3. Bengal Board of Revenue Act, 1913, Sections 3 and 4.

#4. The Motor Vehicles Act, 1939 (Act IV of 1939), Section 64.

#5. The Factories Act, 1948 (Act LXIII of 1948), Section Hl7.

#6. Schedule Districts Act (XIV of 1874), Section 6. (Temporary Powers) Act, 7. Essential Supplies 1946, Section 4.

#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 XL VII of 1947), Sections 3 and 4.

#12. Garo Hills Regulation 1 of 1882, Section 6. 13. Assam Reouisition 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 It may also mean "to be appointed" at is appointed by time. When a person the date of the Act, he thereafter be well described as a ·appointed. any future Provincial Government after person appointed by the Provincial Government. immediately 1957 The Statt of Assam v. A.N. Ki4wai Das C. ]. S.C.R. SUPREME COURT REPORTS 319 It it, to perform remuneration to be appointed legislative that even authority legislature is next suggested nevertheless, itself constituted functions with respect to delegated essential legislature had the appointment of members, for not laid down any policy or principle as to the number, or period of service of qualification, persons the duties of tribunal. We do not think that there is any force in this contention. Section 296(2) of the Government of India Act, 1935, itself, which authorised the Governor constitute a tribunal did not . indicate any qualification to be appointed as the persons the eligibility of members of the tribunal. tribunal It was to sit in appeal over the decision of the Excise indication Commissioner and that by itself gives to the that the person or persons bunal shot.Id have the requisite capacity and compet to deal with appeals from such high officials. We do not consider that there has been an excessive dele gation of legislative power. to be appointed is clear that it was portion of to indicate in enacting the Provincial Government. It was finally urged that the intentim1 of the legis to give impugned Act was lature to the provisions of the Excise Act effect, inter alia, and that there was nothing in any that the intention of the pugned Act the repeal of the provisions of s. 9 lature was to effect of the 1910 Act. There was no question, said, implied repeal of any portion of s. 9. This of any the fact that in Assam the "Board" argument overlooks (1) debarred from exercising any appellate cluded authority and s. 296(2) authorised constitute a tribunal jurisdic the Provincial tion which was being exercised by the commencement immediately Government of the Government of India Act, 1935. Therefore, the jurisdiction of Provincial the Board meaning the 1910 Act was taken away Government under s. 9 of and vested first constituted tmder the 1946 Act, and this appellate jurisdiction was Section 296 legislature, which the Assam Revenue Tribunal in the Governor's tribunal and the members of the ministers, the Governor the appellate to exercise before 1957 Tiii Stat• of A11om v. A. N. Kidwai Dase. J. 320 SUPREME COURT REPORTS [1957} is, the Provincial Government and · referred related only restri.cted as the Governor as revisions the Assam High by the 1948 Act distributed between to in s. 3 (3) of the Court and the authority the circumstances, last mentioned Act. There impugned Act which is repugnant to nothing the Government of s. 9 (2) as modified by s. 296 of India Act, 1935. It was next pointed out that the Excise Commissioner and the Commissioner of a Divi sion had. almost co-ordinate powers under the . scheme the powers of the Commissioner of a Pivi- of s. 9, that . sion were more matters specified by there was no provision in s. 9 for any appeal the Commissioner of a Division against the orders of the Excise Commissioner. This is true enough, but the the Provincial Government had "Board" meaning the .Government of s. 296(2) of been superseded by India Act, 1935, whereby the Assam Revenue Tribu nal was constituted by the authority from the Excise to entertain appeals and replaced Commissioner. The Governor's by the Assam Revenue Tribunal constituted under 1946, Act, which in replaced by two the Assam High Court and the authorities, namely, in s. 3(3) of the 1948 Act. We Authority referred in the Commissioner of Hills Divi see no impropriety that he is the same as the sion and Appeals, assuming Commissioner of a Division, being appointed as authority the Excise Com is true that appeal from the decision of missioner. in matters specified the Commissioner of a Division the Provincial . Government Board and thereafter tribunal and to the Assam Revenue Tribunal and finally to the tribunal in. s. 3(3) of the 1948 Act. The possibility of an appeal from the de.cision of the Com missioner of a Division coming up before. the authority referred to .in s. 3 (3) cannot in our opinion affect the validity of the Notification whereby the Commissioner of Hills Division and Appeals was appointed as the authority contemplated by the highest it may be that the Commissioner of Hills Division and the powers of the authority referred Appeals exercising to entertain appeals from the Governor's s. 3 (3). At tribunal was referred· to turn was initially It S.C.R. SUPREME COURT REPORTS 321 situation will not arise, to under s. 3 (3) may be disqualified from entertaining appeals from his own order, but that does not affect the Excise Com his power. to entertain· appeals from missioner. Even under r. 341 of the Excise Rules appeals arising out of cases decided the excluded areas by the Commis sioner of Hills Division and Appeals would go to the Governor. Jn any event to be any rc:pugnancy between the so called principle or policy of s. · 9 of the 1910 Act as the· . hearing of appeals from the decisions of regards the Excise Commissioner. In our opinion there is no substance in this point. there does not appear the Notification and 1957 The Stale of Assam y • .4..N. Kidt11ai Dase.]. it .seems No other point of law or fact has been urged before us. the judg In our opinion for reasons stated above ments of the High Court appealed from should be set aside and those of the appellate authority should be restored. All the appeals are accordingly allowed. The controversy, relevant enactment and in· the artistic drafting of the the State of Assam has succeeded premises, although filed by. it, we make no order ·as to costs in the appeals filed bv it. The in any of the appeals favour successful appellants respondents from the costs of their respective appeals in those appeals including the State of Assam. to us, arose by reason of the in the other appeals will get ,Appeals allowed. ·DHARMANANDPANT ti. STATE OF UTTAR PRADESH 1957 ·[JAGANNADHADAS, .JA.FER IMAM, GOY.JNDA MENON and J. L. KAPUR, JJ.J . Criminal ;.ial-Exami~ation of prosecution u•itnesses on commis siorz-Propriety-Procedure-Code of Criminal Procedure, ss. 503 and 506. As a general rule in criminal proceedings, nesses on whose testimony establi~h:d must be cxami~ed in Court and usually comm1ss1on should be the important wit the case against the accused has to be the issuing of to such to formal witnesses or restricted