P L D 1966 Dacca 117 (PLP)

A. SATTAR, J.‑The same questions of law and facts arise in these two applications and hence they have been heard together and are disposed of by this judgment. The petitioners have called in question the authority of the Agricultural Income‑tax Officer in issuing a notice to each of them to file a Return in respect of the holding mentioned in the notice for the year 1963‑64 for assessment of tax under the East Pakistan Urban Immovable Property‑tax Act, 1957. The holding in question in Petition No. 137 is situated within Mohara Union of the District of Chittagong and the holding in the case of Petition No. 138 is situate within Sholashahar Union of the said District. By Notification No. 77 F. T. dated the 30th January 1958, the Governor of East Pakistan extended the operation of the East Pakistan Urban Immovable Property Tax Act, 1957 (hereinafter called the Act) to certain areas including Mohara and Paschim Sholashar within Panchlish police‑station of the District of Chittagong. Thereafter, for the assessment years beginning from 1957‑58, tax under the Act in respect of the properties in question of the petitioners was assessed. Petitioners preferred appeals against some of the assessment orders but we are not concerned with the same in these cases. On the 19th September 1963, a notice to each of the petitioners was issued calling upon it to submit Return by the 5th November 1963, as stated above. In each of these cases, a Rule has been issued upon the respondents, namely, the Province of East Pakistan and the Assessing Officer, Agricultural Income‑tax, Chittagong Range, to show cause why the proceedings taken to charge and levy tax by issuing notice dated the 19th September 1963, on the lands and buildings of the petitioner should not be declared to have been taken without lawful authority and as such of no legal effect. The only point that has ultimately been urged by Mr: M. H. Khondkar in support of these Rules is that the notification in question, by which the Act was extended to the areas within which the holding of the petitioner fall, was issued without jurisdiction. The notification, as we shall presently, see, is purported to have been issued in exercise of the powers conferred by sub section (2) of section I of the Act. Section 1 of the Act runs as follows:‑ "I. (I) This Act may be called the East Pakistan Urban Immovable Property Tax Act, 1957. (2) It shall, in the first instance, extend to such areas as have been constituted municipalities under the provisions of the Bengal Municipal Act, 1932, or the Assam Municipal Act, 1923, and to such other areas in East Pakistan as may be notified in the official Gazette, and shall be deemed to have come into force in those areas from the first day of April 1957. (3) The Provincial Government may, by notification in the official Gazette, extend this Act' to such other areas in East Pakistan as may hereafter be constituted municipalities under the provisions of any of the said Acts with effect from such dates as may be specified in such notification whereupon this Act shall apply to such areas from those dates." Mir. Khondkar has argued that, as in subsection (2) of section 1 no authority that can extend the operation of the Act to areas other than those mentioned in the Act itself has been named, the Provincial Government, or the Governor of the Province, had no power to issue the notification in question. It will be seen, on a comparison of the second and the third subsections of section I, that while in subsection (2) no authority has been mentioned for extending the operation of the Act to certain areas which did not already come within the purview of the Act, the Provincial Government has been mentioned in sub section (3). Regard being had to this fact, it has been contended that the Provincial Government could not extend the operation of the Act by any notification published under subsection (2) of section

1. It has further been submitted that if anyone could issue such a notification it was the Legislature and not the Provincial Government. In this case we had the advantage of hearing the learned Advocate‑General on behalf of the respondents. Learned Advocate‑General, in justification of the issuance of the notice, has drawn our attention to section 14 of the Act which empowers the Provincial Government to make rules for carrying out the purposes of this Act. The contention put forward is that this provision clearly indicates that, whatever was necessary to be done in connection with this Act after the Legislature had enacted it was left to be done by the Provincial Government. This argument, in our view, is not at all acceptable as we find that in subsection (3) of section 1 the power to extend the operation of the Act to areas which subsequent to the passing of the Act were constituted municipalities, has been expressly given to the Provincial Government. Non‑mention of any authority in subsection (2) followed immediately by specific mention of the Provincial Government in the next following provision, i.e., subsection (3) in regard to the issuance of the prescribed notification, does not, we are afraid, leave any scope for the argument that subsection (2) either read by itself or with subsection (3) can be said to indicate that the intention of the Legislature was to authorise the Provincial Government or Governor to take the action contemplated thereby: The two provisions, taken together, appear rather to afford a plausible basis for advancing an argument to the contrary with a greater force. Learned Advocate‑General has then drawn our attention to Article 136 of the Constitution and has argued, as the Executive Authority of the Province extends to all matters with respect to which the Legislature of the Province has power to make laws and the intention is clear that the operation of the Act was to be extended by executive action, it is the Provincial Government and the Provincial Government alone which could issue the notification. With due respect, we may point out that this is a far‑fetched argument which cannot be accepted in construing the language of a piece of legislation. Similarly, in our view, Article 80 of the Constitution, which has also been referred to and which provides that the Executive Authority of a Province is vested in the Governor of a Province, does not come to the aid‑ of the respondents. It is true that, if the Provincial Government had been named in subsection (2), the delegation of power of the Legislature would be within permissible limits; but where no authority has been mentioned at all, it is not for the Court to fill up the omission and say that must have been the intention of the Legislature. We feel that in this case it is not necessary at all to refer to all those decisions whose number is legion laying down that it is not for the Court to legislate or to fill up an omission on the part of the Legislature. A piece of legislation has to be construed by the Court with reference to the language used in it, and when it is plain from the language used that no authority has been given to the Provincial Government to act under subsection (2) of section 1 of the Act, it is not for us to clothe the Provincial Government with that authority. If it is considered to be a case of omission, it is for the Legislature to fill it up and it is beyond the jurisdiction of the Court to do so. This is not permitted because the Court can only interpret and not legislate. We are clearly of the view that in subsection (2) there is nothing to indicate that the Provincial Government could extend the operation of the Act to certain areas mentioned in the said subsection. In this view of the matter, we accept the contention of the learned Advocate for the petitioner and hold that the notification in question was issued without any authority. The rules, therefore, are made absolute and it is declared that the Notification No. 77 F. T. dated the 30th January 1958 issued by the Provincial Government was done, without any lawful authority. Regard being had to the facts of these cases, we leave the parties to bear their own costs. Mr. A. W. Mallick on behalf of the Advocate‑General prays for a certificate under Article 58 of the Constitution. These cases, in our view, do not come under the purview of that Article. The prayer for a certificate, therefore, is refused. SIKANDAR ALI, J.‑I agree. K. B. A. Rules made absolute.