- (1.) This judgment will dispose of the above noted 18 several Civil Appeals filed in this Court on certificates of fitness granted by the High Court of Assam under Art. 132 of the Constitution of India. The appeals Nos. 346, 347, 343, 349 and 359 are directed against the judgment of the said High Court passed on 23rd May 1956, in Civil Rules Nos. 26,31,32 and 33 of 1956 issued by the said High Court on several petitions filed under Art 226 of the Constitution. The rest of the appeals arise out of nine other Civil Rules issued in nine other similar writ applications, which were disposed of by the judgment pronounced by the said High Court on 12th, June 1956, which simply followed its previous judgment dated 23rd May 1956. Each of these appeals raises the question of the vires of S.3(3) of the Assam Revenue Tribunal (Transfer of Powers) Act, 1948 (Assam Act No. 4 of 1948) which is hereinafter referred to as 'the 1948 Act' and of the validity of the Notification No. Rex. 184/52/39 issued by the Governor of Assam on 5th July 1955, in exercise of powers conferred on him by sub.-s (3) of S.3 of the said Act appointing the Commissioner of Hills Division and Appeals as the appellate authority under the 1948 Act. All the appeals were accordingly heard together.
(2.) In order to correctly appreciate the question raised before us, it is necessary at this stage to refer to certain relevant statutory provisions and rules. In 1910 was passed the Easetern Bengal and Assam Excise Act, 1910 (E.B. and Assam Act 1 of 1910) which is hereinafter called 'the 1910 Act'. It is an Act to consolidate and amend the low inforce in Eastern Bengal and Assam relating to the import, export, transport, manufacture, sale and possession of intoxicant liquor and intoxicant drugs. Sub-section (2) of S.3 as amended and adapted, defines 'Board' as meaning the Provincial Government of Assam. Chapter II of the Act deals with establishments and control. Section 8 makes provision for the appointment of officers and the conferment, withdrawal and delegation of powers on them. Section 9 of the Act which is of importance was as follows :- "9 (1) In all proceedings under this Act, the Excise Commissioner and the Commissioner of the Division shall be subject to the control of the Board, and the Collector shall be subject to the control of the Excise Commissioner and the Board, and shall also, in such cases and such matters as the Provincial Government may specify, be subject to the control of the Commissioner of the Division. (2) Orders passed under this Act or under any rule made hereunder shall be appealable as follows in manner prescribed by such rules as the Provincial Government may make in this behalf- (a) to the District Collector, any order passed by a Collector other then the District Collector; (b) to the Excise Commissioner or, in such cases and such matters as the Provincial Government may specify, to the Commissioner of the Division, any order passed by the District Collector; and (c) to the Board, any order passed by the Excise Commissioner or by the Commissioner of a Division. (3) In cases not 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. (4) The Board, the Excise Commissioner, the Commissioner of the Division (in such cases and such matters as the Provincial Government may specify.) or the District Collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he may think fit." Chapter III deals with import, export and transport of intoxicants. Manufacture, possession and sale of intoxicants are dealt with in Chap. IV. Section 18 prohibits the sale of intoxicants except under the authority and in accordance with the terms and conditions of a license granted by the Collector or the Excise Commissioner in that behalf and makes certain provisions by way of exception to such prohibition. Chapter V provides for the imposition of duties and fees, either generally or for any specified local area, on any accessible article imported, exported, transported or manufactured under any license 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 licenses, permits and passes. Section 28 of this chapter makes it obligatory on the Collector to take such measures as may best enable him to ascertain local public opinion in regard to the licensing and location of shops. Section 29 makes provision for the cancellation or suspension of licenses, permits or passes. Under S. 32 no person to whom a license has been granted shall have any claim to the renewal of such license or any claim to compensation on the determination thereof. Chapter VII lays down general provisions. Included in that chapter is S. 36, which confers power on the Provincial Government to make rules for the purpose of carrying out the provisions of the Act or any other law for the time being in force relating to the Excise Revenue. Under sub-s.(2), cls.(g) (h) and (i) of this section specific power is given to the Provincial Government to make rules regulating the periods for which and the persons to whom licenses for the sale of any intoxicant may be granted, prescribing the procedure to be followed and the matters to be ascertained before any license 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 chap. VIII. Chapter IX provides for penalties and procedure.
(3.) In exercise of the powers conferred on it by S. 36 the Provincial Government of Assam have made elaborate rules. Part IV of the rules deals with licenses, settlements and fees, duration and number of licenses, location of shops, ascertainment of local public opinion, the procedure for settlement, prohibition on grant of retail license to certain persons, grant of license and so on and so forth. A perusal of the Act and rules will make it clear that no person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors, such control and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue.;