P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.

This is a certificated appeal by the Controller of Estate Duty on behalf of the Central Board of Revenue Pakistan, in a matter relating to the estate of the late Jatindra Kumar Das of Dacca, who died on the 1st April 1951, leaving behind consider able estate, both movable and immovable. In compliance with the requirements of the Estate Duty Act, 1950, his heirs filed an account of this estate for the purpose of Estate Duty showing a net valuation of Rs. 4,25,

103. The Central Board of Revenue to which the account was submitted made k independent enquiry and came to the conclusion that the net value of the estate was Rs. 12,44,

875. The Board's valuation was communicated to the heirs of the deceased, who were called upon to amend their state ment by a given time. They asked for three weeks' extension, but this was not allowed on the ground that time for the making of a reference to the High Court under the Act for obtaining a final valuation was running out, such a reference may be made under subsection (2) of section 59 of the Estate Duty Act, 1950, which reads as under: ‑ "(2) If such person does not amend the valuation to the satis faction of the Board, the Board may move the High Court to hold an inquiry into the true value of the property Provided that no such motion shall be made after the expira tion of one year from the date of delivery of the account under section 53 or section 56." The further provisions of the Act regarding action upon such a reference may also be reproduced here :‑ "(5) The High Court when moved under subsection (2) or sub section (4) shall hold or cause to be held an inquiry accordingly and shall record a finding on the matters in issue. The Board shall be deemed to be a party to the inquiry. (6) Any person authorised by the High Court to hold the inquiry may take such evidence on oath as he considers neces sary and shall submit to the Court a report of the result of the inquiry together with the evidence taken by him and such report and the evidence so taken shall be evidence in the proceeding. (7) The Central Government shall, within eighteen months after the commencement of this Act, and may thereafter from time to time, appoint a sufficient number of qualified persons to act as valuers for the purposes of this Act and shall fix a scale of charges for the remuneration of such persons and the High Court may refer any question of disputed value under this section to the arbitration of any person so appointed; and the costs of any such arbitration shall be part of the costs in the (8) An appeal shall lie to the Federal Court from any judg ment of the High Court delivered on a motion made under this section in any case which the High Court certifies to be a fit case for appeal to the Federal Court." A reference was accordingly made to the High Court by the Central Board of Revenue. It is of date the 6th January, 1953, and it is common ground between the parties that the year of limitation for the making of such a reference was to expire on the 10th January 1953. The reference was made by way of a letter addressed by the Secretary, Central Board of Revenue, to the Registrar of the Dacca High Court, saying that he was directed to submit therewith a reference under section 59 (2) of the Estate Duty Act, 1950 in the matter of the estate in question, "for decision by the Honourable High Court of Judicature at Dacca on the issue involved." Details of the reference were contained in an enclosure to the letter which began with the words: ‑ "Before the High Court of Judicature at Dacca. In the matter of The estate of the late Mr. Jatindra Kumar Das. Reference under subsection (2) of section 59 of the Estate Duty Act, 1950." Then followed a statement of the account furnished by the heirs, which the Board had found to be too low, and the Boatd's own valuation was then tabulated in detail, and this was followed by an explanation of the variation in respect of each item. In para graph 4, the Board stated the facts of its communications with the legal representatives, and the reason why their request ‑for an adjournment could not be allowed. The last paragraph reads as follows: ‑ "A reference is, therefore, made to the Honourable High Court at Dacca in accordance with the provisions of sub section (2) of section 59 of the Estate Duty Act, 1950 with the request that an enquiry may be held into the true value of the estate of the deceased." The action prescribed by the law was not taken upon the Board's reference, but instead on the 2nd June 1954, i.e. one year and five months after the receipt of the reference, the Registrar of the High Court wrote a letter to the Secretary, Central Board of Revenue, asking him to "be so good as to let this Court, know whether in view of the amendment in the procedure you still wish to proceed with this matter under the Act of 1950." The reference was to an amending Act described as Act XV of 1953, but the precise effect of the amendment was not stated. There was some intermediate correspondence, which has not been printed. The next letter printed is of date, the 24th March 1955, by the Registrar of the Dacca High Court to the Controller of Estate Duty, and contains the request that the Secretary Central Board of Revenue should be informed "that this Court has to be moved by way of motion in open Court with notice to the other side as is provided in Chapter XX of the (Original Side) Rules and request him to take action accordingly." The letter also stated that an Advocate of the Court had already, entered appearance in the High Court on behalf of the opposite side. In compliance with this letter, an application drafted by counsel and supported application drafted by counsel and supported by affidavit was presented in the Registry on behalf of the Controller of Estate Duty on the 24th June 1957 and was returned to the Advocate two days later "to enable him to move it in the open Court with notice to other side." After certain further proceedings, the application came up before Mr. Justice Hamudur Rahman on the 2nd July 1957 and was marked "to be mentioned" on the 22nd July; on which date it was adjourned to the 12th August 1957 to enable the parties to file their affidavits. It was eventually heard on the 20th Decem ber 1957 and was dismissed as being barred by the special limita tion of one year under section 59 (2) of the relevant Act, by the same learned Judge. It was observed, however, that had there been jurisdiction to enlarge time, the learned Judge would have exercised that power to condone the delay, and for this reason he made no order as to costs. The reasons for the dismissal of‑the application briefly were as follows. The requirement of the Act in section 59 (2) was inter preted to be that the application should be moved on behalf of the Board in open Court for the purpose of obtaining a rule or order from the Court, as is the practice of .the Dacca High Court in relation to motions on the Original Side. The learned Judge accepted the argument presented before him that the Legislature must be deemed to be acquainted with the procedure of the High Court, and that procedure prescribes and has always prescribed that a motion to the Court has to be moved by way of an applica tion in open Court and not by way of a letter. "In the opinion of the learned Judge any doubt as to the intention of the Legis lature which used the word "move" in the subsection was" abundantly removed by the use of the word "motion" in the proviso to the said subsection‑"Therefore, the learned Judge held that the High Court was first moved in respect of the estate in question under the relevant law on a date in July 1957, long after the expiry of the year of limitation. Further, since the Estate Duty Act did not expressly make applicable to its provisions, the relaxing provisions of section 5 of the Limitation Act, in con tradistinction to other taxing statutes such as the Income‑tax Act. 1922 and the Bengal Agricultural Income‑tax Act, 1944, it followed that it was the intention of the Legislature that relaxation of limitation should not apply to matters falling within the Estate Duty Act, 1950. Upon consideration of the provisions of the relevant law and. the arguments addressed to us by learned counsel on the two sides, we find it impossible, with respect, to sustain the view expressed on the first point by the learned Judge in the High Court. As is clear from the figures already mentioned, the matter was one of considerable importance to the revenue, but however small the amount involved might be, it was, in our opinion, necessary that before enforcing certain formal rules of practice of the High Court in such a way as to deny to the Government Department con cerned a right of approach to the High Court for assistance in the resolution of important matters arising under a statute, regard should have been had to the question whether those formal rules were in their terms appropriate for application to a case arising under section 59 (2) of the relevant Act. We have been informed s of the High Court of Dacca on the Original Side in published yet, although they have been formulated, and are in course of publication. The practice followed is that of the Calcutta High Court and in regard to motions on the Original Side, it is indeed as stated in the order under appeal. The practice of superior Courts such as the Dacca High Court is as firmly grounded on tradition as upon any written rules that may be in operation, and it is indeed right and proper that wherever it may be necessary, the observance of established rules of practice, should be insisted upon by the Court, in order to main tain the dignity of the Court and the decorum of its proceedings. Where the jurisdiction which the High Court is called upon to exercise is of a familiar kind, such as the jurisdiction in relation to ordinary civil and criminal matters, such observance may be, and ought to be rigorously enforced, subject only to relaxation in special cases where the High Court may think fit. But the same severity may be out of place where the jurisdiction is of a special kind or is one which is not frequently invoked. We are informed that the present case was the first of its kind to come before the Court under the Estate Duty Act. Even though the application was made by a Government Department, which might be assumed to have had available the best legal advice as to matters to be brought before the High Court, yet it cannot be denied that, if the law were so expressed as to leave some doubt upon the matter, and if such a doubt should lead to the making of an application in a form with which the High Court was not familiar, the argu ment in favour of condonation of the error could not wholly be excluded. We find in the relevant law ample ground for thinking that a proceeding under section 59 (2) is by no means comparable in essential respects to a motion on the Original Side of the High Court, to be moved after notice, and praying relief at the hands of the Court.. That, it appears to us, is the foundation of the mis conception upon which the or'. 1r of the High Court is based, and it appears for the first time in the letter of the 24th March 1955 which has already been mentioned It seems to us upon a plain reading of subsections (2) and (5) of section‑59 of the Act that they do not admit of the possibility of the motion by the Board being dismissed in limine, but on the other hand, it appears to us that when the High Court is moved under subsection (2) it has no alternative course but to under the necessary enquiry and to record findings on the matters issue. When the relevant provisions in section 59 are read together, the impression gained is that what is described, in courteous language, appropriate to the occasion as n "motion", has indeed all tile essential features of a requisition. Such an enquiry being of a judicial nature, it is of course necessary that it should be conducted in the presence of both parties, and therefore it would be the duty of the High Court before commencing the enquiry to send a notice to the opposite party and secure its attendance, and then to proceed to receive evidence on the two sides and reach its conclusions thereon. But the law as enacted contains nothing to support the view expressed in the High Court's letter of the 24th March 1955 which was enforced later in June and July 1957, that it was necessary condi tion of the presentation of the application before the High Court that notice of the application should first have been served on the opposite side. Therefore, we are unable to regard the initiation of a proceed ing under section 59 (2) as possessing anything of the character of a prayer for relief at the hands of the Court. There are no rules of the High Court, which are strictly applicable to a matter moved under that subsection. For compliance with the subsection it should therefore be sufficient that the jurisdiction of the High Court, which is expressed rather in terms of a duty than of a power, should be invoked, and the Court should, as it were, be set in motion for the performance of that duty by an application set ting out in sufficient detail the difference that has arisen in regard to the valuation of a particular estate, and asking that action should be taken as required by law. That is precisely what was done initially by means of the letter dated the 6th January 1953. There was nothing casual or superficial about that letter or its enclosure. The wording in both cases was respectful and formal. The facts were stated in detail so as to clarify the points of difference. Finally, a request was made in polite terms "that an enquiry may be held into the true valuation of the estate of the deceased." We consider that this reference was made in substantial com pliance with subsection (2) of section 59, and that upon receipt thereof it was the duty of the High Court to act as required by the statute. We do not apprehend that the words "move" and "motion" could have been used with reference to any particular rule of the High Court, since the law was of novel origin and was prescribing a requirement which bore no resemblance to anything pertaining to the ordinary or usual jurisdiction of the High Court We do not consider that it is possible to interpret the words as having reference to the practice of the High Court on the Original Side, for the simple reason that the new proceeding which was being created by the statute did not categorically fall within the original jurisdiction of the High Court as known to the Legislature. Some comment has been made in the judgment under appeal upon the long delay, which followed the letter of the 24th March 1955, before the action desired by the High Court was taken by the Department concerned. As to this, it is sufficient to point out that 'the first move by the High Court, in furtherance of the reference dated the 6th January 1953, is that appearing from the letter of the 24th March 1955. On this view, it is clear that limitation for the purposes of section 59 (2) is not to be judged in relation to the later motion of 1957 and that the dismissal of the reference upon the ground of limitation cannot be sustained. It follows that no question of extension of limitation in respect of the motion of 1957 arises for consideration. We allow this appeal and setting aside the order of the High Court we direct that the reference dated the 6tli January 1953 should be entertained as a motion falling within section 59 (2) of the Act, and should be proceeded with in accord ance with law. . We would like to make it clear that nothing that we have said in this order should be construde as preventing the High Court, in the exercise of its powers, from making such rules as it may deem fit to be applicable to the presentation of motions under the relevant law for the future. In the circumstances of the case, we make no order as to costs. A. H.