P L D 1976 Lahore 1079 (PLP)

This judgment disposes of the following Constitutional petitions (1) Writ Fetition No. 265/75, Mst. Rehmat‑un‑Nisa Begum v. Controller, Estate Duty and another. (2) Writ Petition No. 568/75, Mst. Fehrnida Begum v. Controller, Estate Duty and another. (3) Writ Petition No. 756/75, Mst, Zaitoon Begum v. Controller, Estate Duty and another.

2. The Estate of Nawab Muhammad Farid Khan of Amb State, situate in Upper Tanawal area of Hazara district is the subject‑matter or these writ petitions. The Controller of Estate Duty by an order made under section 58‑A of the Estate Duty Act, 1950, on llth January 1975 valued the land of the deceased situate in Upper Tanawal area and acquired for the rarbela Dam at 62,55,642 and assessed estate duty on it and other properties of the Nawab and fixed it at 36,18,

804. The petitioners are all accountable person, being the heirs of the aforesaid Nawab either directly or through intermediaries, the death of the Nawab having taken place in

070. The petitioners contend that Estate Duty Act does not extend to the Upper Tanawal area of Hazara district and the land situate there could not be brought to charge nor could estate duty be assessed and levied on it. The departmental view as contained in report received from the Controller of Estate Duty, Lahore on this specific question was as follows "It is not denied that in response to notice issued by the Estate Duty Department directing the heirs of the deceased, Nawab to file Estate Duty Return the petitioners submitted an application through her counsel saying that major portion of the estate of the deceased eras situated in Upper Tanawal area in the former State of Amb to which the Estate Duty Act, 1.950 was not applicable. At this the Central Board of Revenue was approached by the Estate Duty ,iepartment for advice on this legal issue. The Central Board of Revenue after necessary enquiries from the Ministry of Interior, States and Frontier Regions, expressed the opinion that Upper Tanawai which lies on the left bank of River Indus had been merged in Haaara district long before the death of the Nawab and as such the Estate Duty Act was applicable there." Mr. Abdul Haq. the learned counsel for the Department did not so much rely on this departmental view that the merger of Upper Tanawal area in the Hazara district had brought by its own force the extension of all the laws which were already in force in the Hazara district. Such an argument it is contended cannot be advanced in view of the provisions contained in Article 3 of Presidential Order No. 3 of 1961 (Excluded Areas) (Cesser of Exclusion) (West Pakistan) Order, 1961. Article 2 of this Order authorises the Provincial Government to notify the appointed day whereupon the excluded area as described in the Schedule shall cease to be excluded area and shall form part of such district or districts as may be specified in the notification. The necessary notification in this behalf was made by the Governor on the 9th September 1971, who notified lath September 1961 as the appointed day (P. L. D. Provincial Statutes, page 50) when Upper Tanawal area was to form part of Hazara district in the Peshawar Division. Article 3 of Presidential Order No. 3 provided, "notwithstanding anything contained in Article 2 all laws and legal instruments in force in the aforesaid areas immediately before the appointed day shall, so far as applic able and with necessary adaptations, continue in force until altered, amended or repealed by competent authority." Article 4 of the Order authorised the Governor of West Pakistan to "make such provision as appears to him to be necessary or expedient for extending to any of the aforesaid areas any law which immediately before the appointed day was in force in the district of which the area concerned has formed part under Article 2." It is conceded that the Governor has not extended application of Estate Duty Act by any notified order under Article 4 of the Order to the Upper Tanawal area of Hazara.

3. The learned counsel for the Department has taken up the ground that President's Order No. 1 of 1970 while dissolving Province of West Pakistan provided, by its Article 4, the creation and constitution of new Provinces and the Schedule of provinces referable to clause 2 of Article 4 while indicating the limits of North‑West Frontier Province provided that Peshawar Division including former Amb State and tribal area adjoining Hazara district, but excluding other tribal areas shall form part of that ‑province. It is contended that as no reservation was made here with respect to the applicability of laws and as the Dissolution Order of 1970 had the effect of overriding every other law in the field the effect was to extend by its own force all the laws in the other territories of Peshawar Division to the areas comprising former Amb State and tribal areas adjoining Hazaca district, which formed part of Pesbawar Division of North‑West Frontier Province as established under Dissolution Order.

4. The question being purely legal and jurisdictional can appro priately be determined in these proceedings. The departmental view which rinds its place in comments and reports submitted in the, case does not provide any ground on which the inference has been drawn that Estate Duty Act is applicable to the Upper Tanawal area, A least the Controller of Estate Duty who was seized of this specific question and had the statutory duty to decide it has not applied his mind to the question and instead after referring it to the Central Board of Revenue which in turn referred it to Ministry of Interior and Frontier Regions. accepted the view received from there without examining its correctness or the reasons therefor. This itself would indicate that the statutory authority which was charged with the duty to deal with the question has not dealt with it at all and has relied upon a view which even to it does not appear to be based on any fact or law. At least no such reason or fact from which such an inference was drawn has been mentioned in any of the reports or comments.

5. It has to be noted in the context that the view advanced by the earned counsel for the Department is materially different from the view taken by the Department itself. However, in order to resolve the legal' question arising in the case it would be necessary to examine briefly the: history of the Upper Tanawal area. The Gazetteer of the Hazara District 1907 recites "the status of Feudal Tanawal with reference to the British Government is one of considerable interest. And the Khan of Amb occupies an especially unique position, for he is at once an independent ruler, a feudal chief, and a British subject. He is the first as regards his trans‑Indus territory ; the second as regards Feudal Tanawal ; and the third on account of tenure of a large Jagir and of certain land in the Haripur Tehsil." The legal position of the area gets for the first time somewhat formalised by Regulation No. II of 1900 as amended from time to time. Article 3 of this Regulation provided "notwithstanding anything in any law or enactment for the time being in force no law or enactment shall save as hereinafter provided be deemed to be in force in Upper Tanawal," and the next Article authorised the Local Government to extend any enactment to Upper Tanawal. It was in this situation that Presidentiah Order No. 3 of 1961 came to be enacted, which too, like its predecessor authorised the Governor (instead of Local Government) to extend by notification any law in force in the district or area to which it was annexed. Before the dissolution of West Pakistan, a law which came to be enacted and applied to this area was the Civil Procedure (Special Provisions), Ordinance, 1968 and the Criminal Law (Special Provisions) Ordinance, 1968.. These were the new laws applied to this area and others. It was not a case of extension of the existing laws to the merged areas.

6. The Constitutional history of the area shows that in the Consti tution of 1962 the State of Amb was treated as a tribal area and there was a special provision made in Article 223 about the extension or application of laws to the tribal areas. The Dissolution of West Pakistan Order while describing the limits of North‑West Frontier Province mentioned former Amb State and tribal areas adjoining Hazara district, but excluding other tribal areas to be part of Peshawar Division. What is sought to be implied by reference to Article 4 read with the Schedule setting out the territories of the Provinces established is expressly negated by Article 19, clause (1) of the Dissolution Order. It reads "Except as expressly provided by or under this Order all existing laws shall continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority."

7. There had to be an express provision. Even in a situation where implied results are acceptable, the implication has to be necessary and manifest, which is not the case here.

8. It is clear from this history of the area that there was no order notified in the Gazette under Article 3 of the Presidential Order No. 3 of 1961, whereby Estate Duty Act may have been extended to this area. The simple inclusion of it in the Peshawar Division by the Dissolution Order would` not alter the position in the matter of applicability of laws because it was a part of Hazara district since 1961 and being a part of Hazara district it was a part of Peshawar Division. Description of the boundary of a Province, area or Division does not by its silence have the effect of enacting laws which were not in the field or for creating rights and liabilities under such Acts. A specific power was possessed by the Local Government as well as the: Central Government to extend the laws applicable in Hazara district to the area which had been included in the district. Not shown to have ever exercised that power the applicability of the Estate Duty Act cannot be assumed or inferred from the Dissolution Order of West Pakistan.

9. These petitions are allowed with costs. The assumption of juris diction by the Collector of an Estate Duty over the properties of Nawab situate in Upper Tanawal is declared to be without lawful authority and the levy of estate duty on the basis of such erroneous assumption of jurisdiction is declared as void. s. Q. Petition allowed.