P L D 1962 Supreme Court 113 (PLP)

CORNELIUS, C. J.‑

This judgment will dispose of three Civil Appeals No. 19 of 1961, by the Burmah Oil Company (Pakistan Trading) Ltd. No. 20 of 1961, by the Standard Vacuum Oil Company and No. 21 of 1961, by the Burmah Shell Oil Storage and Distributing Company of Pakistan Ltd. In each case the Trustees of the Port of Chittagong are the respondents and the judgment appealed against in each of the appeals is that by which writ petitions filed by the three appellant‑Companies before the High Court of East Pakistan were dismissed. The petitions raised in essence a single question which may be stated as follows. Each of the Companies imports oil in tankers at the Port of Chittagong and after a period of storage of the said oil in tanks maintained at the jetties etc. belonging to the respective Companies, the oil is distributed by means of other vessels to other places in East Pakistan. It is possible that in part the distribution is not by sea, but the present case is confined to a levy upon transport by sea going vessels of oil which has been stored for a greater or less period in the storage tanks aforesaid. One question which has been raised in the cases is as to the length of this period of storage. There is no proof available upon the record on this subject. It is of importance 9n relation to the application of a certain exemption, granted in respect of dues upon goods re‑exported from Chittagong, by the Government of Bengal as far back as 1903. The effect is that goods which are re‑exported, within a period of 6 months from the date of payment of the river dues of import are exempted from payment of the river dues which would be otherwise charged upon the outward movement. Under section 58 of the Chittagong Port Act, 1914 which is at present in force, the Trustees have power with the previous sanction of the Central Government to impose such a river due "on all goods landed from or shipped into any sea‑going vessel lying or being within the limit$ of the Port", and this chargeable irrespective of whether the goods are landed or shipped at the Trustees' wharves or jetties etc. or at wharves or jetties which are privately owned such as those here in question. The Chittagong Port Act replaced the earlier Chittagong Port Commissioners Act, 1887 in which a provision extending the charge to privately owned wharves etc. was inserted by an amendment of May 1903. In September of the same year, the Provincial Government of East Bengal which was the appropriate authority under that Act issued the exempting notification which reads as follows:-- "In exercise of the powers conferred upon him by section 44 of the Chittagong Port Commissioners Act, 1887, the Lieutenant Governor has been pleased to exempt such goods from the payment of the river‑due leviable on goods shipped into a sea‑going vessel under section 33‑A of that Act, as amended by Act IV of 1903, as have paid the river‑due when landed at that Port from a sea‑going vessel, if the same goods are again shipped into a sea‑going vessel within a period of six months from the date of payment of the due on being landed." The Companies claim the benefit of this exemption, while the Trustees' case is that as a result of the repeal of the Act of 1887, by the Chittagong Port Act, 1914, this exemption is of no effect. The new section corresponding to section 44 of the Chittagong Port Commissioners Act, 1887 is section 95 of the Chittagong Port Act of 1914 which subjects all actions and proceedings of the Trustees to the control of the Central Government, and empowers the Central Government inter alla to "grant exemptions from the payment of any tolls, charges, dues or rates leviable under this Act". For the interpretation of the Chittagong Port Commissioners Act, 1887, and the Chittagong Port Act, 1914, reference may be made to the Bengal General Clauses Act, 1899, of which section 8 is relevant. This section provides that when any Bengal Act repeals any earlier enactment, then the repeal shall not inter alia affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, i.e , under the repealed Act. The exemption granted by the Government of East Bengal in 1903 would under this provision appear to continue to have A effect after the coming into force of the new Act of 1914. It is admitted that, in fact, the exemptions continued to be granted. Reference may here be made also to section 112 of the new Act which lays down inter alia that "all orders . . . . relating to . . . tolls, charges, rates and dues within the Port made and issued before the commencement of this Act, shall, whenever such acts, proceedings, orders, rules, regulations or bye‑laws would have been lawful if this Act had been in force, be deemed to have been respectively done, taken, made and issued under the provisions of this Act". The orders by which river dues were imposed at the Port of Chittagong, and the further order by which in the particu lar case an exemption was granted by the Provincial Government would appear to fall within the scope of this validating provision, for the power of exemption conferred by the 1887 Act was conti nued expressly in the Act of 1914, and although after 1928, the Provincial Government of Bengal ceased to be the appropriate Government under the Act, being replaced by the Central Govern ment, since the exemption was not either withdrawn or varied by any order of the Central Government, it must be deemed to have continued in force, as if it had been made under the new Act. The repeal of the old Act would not, under section 8 of the Bengal General Clauses Act, affect the continued validity of this action. The situation which necessitated the institution of the writ petitions by the Companies arose In the following manner. The rate of river due at the Port of Chittagong had been fixed as far back as 1921 at 0‑6‑0 per ton of cargo fuel oil, such as that here in question, while the general rate was only Re. 1 per ton. B 1951, the rate had been raised overall to Rs. 2 per ton. In order to increase the Port revenues, the Trustees on the 19th March 1951 issued a notification stating their intention to increase the rate of river dues by an additional 0‑4‑0 per ton, viz. to Rs. 2‑4‑0 per ton. (It appears that by this time, the concession in favour of fuel oil had been withdrawn). The proposal made in 1951 was not finalised until 1955 and before it was finalised, it was modified by the addition of a further proposal "to levy as a special case river dues on the consignments transported by inland sea‑going vessel at Rs. 1‑2‑0 per half a ton or part thereof with effect from the first of May 1955". The finalizing notification is dated the 10th September 1955, and confirms the earlier notifications so as to increase river dues generally to Rs. 2‑4‑0 per ton or part thereof except in the case of goods transported by inland sea‑going vessels, where as a special case the rate was to be Rs. 1‑2‑0 per half a ton or part thereof. Then, on the 14th April 1956, the Trustees issued a statement in the form of a notification to the effect that the exemption granted by the notification of 1903 had been "abrogated by the enforcement of Chittagong Port Act, 1914" and as a result of river dues were now leviable on all goods brought Into or taken out of the Port, including goods taken out by sea‑going vessels plying in inland waters. By the same notifica tion, the Trustees called upon all persons concerned to furnish details of goods so transported, i.e. re‑exported from the Port, for the purpose of charging outward dues. The Oil Companies were hit by this so‑called notification, and they protested. There were discussions and exchange of letters and finally in the year 1960, demand notices were sent by the Port Authorities for outward river dues on a number of consignments, which were supported by a statement that non‑payment "would constitute a violation of the provisions of the Chittagong Port Act". That was a reference to the coercive powers of the Trustees to recover dues by distraint and arrest of goods and vessels, and the petitioners thereupon, as they say, having been placed "in peril", instituted their writ petitions in the month of July 1960. By the petitions they sought writs of mandamus to the Trustees to give effect to the exemption of 1903 and to cancel the notifications of September 1955 and April, 1956 and also to withdraw their letter of demand of May 1960. In each case, the petitions stated that under irresistible force, and having no other option, the company had paid a sum of money towards outward river dues which fn their submission were not chargeable by virtue of the exemption. The amount was Rs. 17,000 in the Burmah Oil Company's case, Rs. 3,512 in the Standard Vacuum Oil Company's case and Rs. 1,13,553 in the case of the Burmah‑Shell Company. The Trustees resisted the petitions on all points, and in particular asserted that the exemption of 1903 stood repealed by the enact ment of the Chittagong Port Act, 1914, that the impugned notifi cations did not impose any new levy and generally that the petition was not maintainable because it merely sought an opinion of the High Court it with regard to the Trustees' powers to realize river dues. The High Court rejected the petitions on three general grounds. The first is that the petitioners had not made out "any case of a specific injury or imminent or immediate threat of such injury" and had merely asked the Court to "state the general law on the subject and to direct the respondents to act according to law". They observed further that the petitioners had merely asked to be protected "from a possible and probable injury likely to be caused to the petitioners in future because of the opinion expressed in the impugned notification (i.e. that of 1956) which according to the petitioners is bad in law". The learned Judges thought also that the petitioners had failed to establish any right in themselves which had been violated, and for these reasons they refused to give any opinion as to whether the notification of 1903 was still in force. As regards the notification of 1956, they did not see fit to deal with it because it was a mere " expression of opinion on a point of law". They considered that there was no occasion to interfere with the notification increasing the river dues which was issued in 1955, and expressed the opinion that the letter of demand of May 1960 was in accordance with the rate so fixed. It had not been shown to them in what way the demand of May 1960 suffered from illegality, or how the money paid In response to this letter was an "illegal exaction". A further ground upon which they thought fit to refuse the writ was that of delay and they calculated this delay from the dates 1955 and 1956 when the notifications in question were issued. Finally, they thought that the matter was of such a nature that "a suit would have been more convenient and beneficial remedy". Accordingly, they rejected the petition and the petitioners were granted special leave to appeal before us. There Is no question but that the only point at issue between the parties is as to the implementation of the notification of exemption issued in 1903. In each of these cases there has been placed upon the record a letter issued through solicitors by the Companies to the Trustees, stating their case against the demand of May 1960. In each of these letters, it is clearly stated that by the notification of 1903 "power was taken from you to levy" outward river dues on goods in the circumstances stated in the notification, and that this exemption had throughout been allowed in favour of the Oil Companies until by the notice of the 17th May 1960, the demand was illegally made of "double river dues from 1st April 1955". As has been seen, in consequence of this demand, sums of money were actually paid in protest by each Company. It seems to us that upon this examination, it is impossible to escape the conclusion that there was a specific injury, namely, the enforced payment of a sum by way of river dues, which each Company contends it was relieved against by virtue of the notification of 1903. It is in our opinion clear also that there was an "imminent and immediate threat" of continuing injury by reason of the refusal of the Trustees to recognise the exemption relied upon by the Companies. The Trustees had by their "notification" of 1956, by publicly declaring that the exemp tions stood abrogated, made it clear that they were not going to recognise it for the future. As a result of negotiations and discussions, it was not until after four years had elapsed that the Trustees moved to give effect to their view, but the fact is undeni able that from 1956 onwards the Companies were under the threat of being required to pay dues from which they had up to that time enjoyed relief by virtue of the exemption of 1903. Therefore, it seems to us that the ground of absence of a threat of injury or of specific injury could not have been justly advanced against the issue of a writ in the present case. The threat conveyed by the notification of 1956 was put into effect by the demand of 1960, and it led directly to an injury, in the shape of money paid in consequence of the demand, and remained as an ever‑present threat of exaction by further similar demands, since the Companies are continuing to engage in the same business, namely, of importing and distributing oil at the ,Port of Chittagong. The ground of laches also appears to us to be misconceived, for the threat in question never assumed a lively aspect until a few months before the petitions were instituted. As the learned Judges have themselves pointed out, the notification of 1955 does not per se, operate to avoid the exemption and as for the "notification" of 1956, it was wholly without legal effect, being merely expression of an opinion on a point of law, which appear moreover to have been totally incorrect. Therefore, the notifi cations of 1955 and 1956 did not provide any starting point for the estimation of time. As for the opinion expressed that a suit would be a more convenient mode of decision of this matter, it is supported by 41 reference to a suit filed earlier to which none of these Companrep1 was a party. We consider that since the question which arose w a., one of fiscal right based upon a statutory instrument, it was a4l easily and conveniently determinable in a writ petition as by l means of a suit. By the exempting notification, a duty was cast D upon the taxing authority, viz. the Port Trustees to relieve the, subject against certain impositions, and thereby a corresponding, right to such relief was created in favour of the subject.' Mandamus is in every way an appropriate remedy for the asser tion of such a right, by enforcement of the corresponding duty. Therefore, in our opinion, no grounds of a general nature were available in bar of the exercise of the jurisdiction to grant a mandamus in each of these cases. As to the question whether the notification of exemption remains valid to this day, we entertain no doubt that the answer is in the affirmative. The history of the law and the chain of validity through the various amend ments and enactments has already been considered, and we can see no reason, nor was Mr. Brohi who appeared for the respondents able to indicate any reason, for thinking that the notification of 1903 had been affected by any Act of a Legislature or order o1 any authority since it was issued. It is obvious that the exemption Is not affected by any variation in the rates current for river dues as imposed by the Trustees. It will apply in its terms, Irrespective of such rates as may be in force from time to time. Any attempt to modify the effect of the exemption by variation of rates must necessarily fail. Such a result can only be produced by action on the part of the Central Government. In our opinion, the appellant‑Companies were entitled to a writ in each case addressed to the Trustees of the Port of Chittagong, declaring that despite their notification of the 14th April 1956, the exempting notification under the Chittagong Port Commissioners Act, 1887, viz. No. 180‑Marine, dated the 26th September 1903, is still in force, and requiring that they shall give the benefit of it to the petitioners, until and unless such exemp tion is withdrawn or varied by competent authority under the existing law. The prayer for quashment of the notification of 1955 fixing fresh rates for river dues is without substance and is rejected. In ail the circumstances, we leave the parties to bear their own costs throughout. A.H. Order accordingly.