GHANASYAM DAS AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) THIS order shall cover Civil Rules 69/52, 75/52 85/52 and 40/52.

(2.) ALL these Rules are directed against the orders purporting to have been passed by Sri J.J.M. Nichols Roy, Minister in charge of Excise, in the capacity of Excise Appellate Authority, Assam and in the exercise of powers conferred on him by notification No. MEX. 120/43/1 dated 15 -6 -1948.

(3.) IT is contended that the notification of 15 -6 -1948 by which the Governor of Assam appointed the Minister in charge of Excise as the authority to entertain appeals and review decisions in matters arising under the provisions of the enactments specified in Schedule B to the Assam Revenue Tribunal (Transfer of Powers) Act (Act 4 of 1948) in supersession of Revenue Department Notification No. R. T. 22/47/29 dated 17 -4 -1948 was 'ultra vires' inasmuch as it contravened the prohibition contained in Section 296 of the Government of India Act 1935. The prohibition enacted by that section was that 'no member of the Dominion Legislature or of a Provincial Legislature shall be a member of any tribunal in a Governor's or Chief Commissioner's Province having jurisdiction to entertain appeals or revise decisions in revenue cases.' It is argued that the Minister of Excise is a member of the Provincial Legislature. Matters in which he was given appellate and revisional powers were revenue cases within the meaning of Section 296 (Government of India Act, 1935). The notification by which he was invested with jurisdiction which he purported to exercise in these cases involves a patent contravention of a mandatory prohibition of the Constitution Act which was in force in 1948. The notification was therefore void. It could not effectively confer any appellate or revisional jurisdiction in revenue cases on him and he was never invested in the eye of law with any such jurisdiction. His orders are in the exercise of jurisdiction which he never possessed and are void and of no effect.