P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑

This order will dispose of Writ Petitions 662 and 663 of 1956, which have arisen in the follow ing circumstances. Sir Muhammad Akbar Khan, Nawab of Hoti, died on the 6th October 1952, leaving a lot of agricultural and other property. The petitioners are heirs of the late Nawab. The estate left by the deceased was undoubtedly liable to estate duty under the Estate Duty Act, 1950 (hereinafter referred to as the Act). An account of the property left by the deceased was submitted by the petitioners on the 18th March 1953, within six months of the death of the Nawab, to the Central Board of Revenue, as required by section 53 (old section 49, which was re‑numbered as 53 by the 1951 amendment) of the Act, as it then stood. The valuation mentioned in this statement was of the order of rupees thirty lacs and odd, which, if accepted, would have entailed the assessment of duty of about rupees ten lacs and odd. The Board of Revenue, by letter dated 30th May 1953, intimated to the petitioners, presumably under section 58 (old section 54), that they should deposit rupees four lacs out of the duty payable as the first instalment, and the question of payment of the remainder by instalments could be con sidered later. Under the provisions of the Act, as it then stood, the Board could either accept the valuation declared or, after such inquiry as it might think fit. require the accountable person to amend the valuation. If the person concerned did not comply with this direction to the Board's satisfaction, it could move the High Court to hold an inquiry into the true value of the property within one year from the date of delivery of the account. The decision of the High Court was to be final, subject to the result of an appeal to the Federal Court. Before the time‑limit of one year had expired, the Act was amended in July 1953, by the Estate Duty (Amendment) Act, 1953, which was to take effect from the 3rd of July 1953. Inter altar one change introduced by this Act was that the Board was replaced by an official called the Controller in most, of the sections of the Act. The functions of the Board in respect of valuation, therefore, devolved on the Controller henceforth, and from a decision of the Controller, a right of appeal was given to a tribunal, called the Appellate Tribunal. There could further be a reference on points of law alone, to the High Court, with a further appeal on those points to the Federal Court. A direct reference could also be made by the Tribunal to the Federal Court in cases where a conflict of decisions by various High Courts existed on a particular point. The decision of the High Court or of the Federal Court, as the case may be, would be binding on the Controller and the Tribunal. But though certain sections were amended and others added to the Act, bearing on the determination of the valuation of the estate of a deceased person, conse quential amendments were not made in section 57, with the result that though the Controller could revise a valuation declared by the accountable person, he could realise no more than the duty assessable, on the declared valuation itself. Section 57 provided that estate duty shall be due from the date of the death of the deceased and shall be collected upon the account delivered under section 53 or section 56 or prepared under subsection (3) of section 59 and amended or modified where necessary, as provided in subsection (1) or subsection (5) of section

59. The reference in this section to subsections (1), (3) and (5) of section 59 had become entirely inapt and meaningless, owing to the amendments made in 1953. Subsection (1) of section 59 before the amendments, empower ed the Board of Revenue after necessary inquiry to fix a valuation; subsection (3) of that section further authorized the Board, in cases where no account had been delivered, to have an account of the property prepared in such manner and by such means as it deemed fit, and subsection (5) referred to the determination of the valuation by the High Court. After the 1953 amendments, subsection (1) of section 59 enabled a person objecting to the valuation made by the Controller, to appeal to the Appellate Tribunal, subsection (3) related to the determination by the Appellate 'Tribunal of the matter in dispute and there was no subsection (5) of the section at all left. In cases, therefore, where the account had not been delivered to and the valuation had not been determined' by the Controller., the machinery provided by section 57 was entirely inadequate, except to the extent that duty could be realised on the valuation declared by the accountable person himself. This was coupled with the anomaly that inquiry into the valuation was not shut out. As the Controller insisted on the petitioners' valuation being revised, Writ Petition 39 of 1955 was presented to this Court to challenge his action. It came on for hearing before a Division Bench of which I was a member. Full arguments were heard on that petition and on the 23rd January 1956, it ended with certain statements made by the Advocate General on behalf of the Central Government and by learned counsel for the petitioners. It was conceded‑ on behalf of the Central Government that no claim in excess of the amount assessable on the declared valuation, could be made under section 57, as it then stood. The balance of the estate duty still due on that basis; amounting to about Rs. 79,000 odd, was deposited in the State Bank by the petitioners and it was agreed that a discharge certificate, as required by section 58 of the Act, would be issued. As a result of these statements, the petition was dismissed as in fructuous. The discharge certificate subsequently furnished to the petitioners, however, did not say that final payment had been made so as to close the case under the Act as it then existed. The petitioners again approached this Court and a Division Bench (of which I was again a member) clarified the situation by order dated the 8th March 1956, by recording that the sum paid was the only duty payable under the Act and the receipt should be held to have discharged that obligation. No notice was, however, sent of this second petition to the Attorney General. The Act was again amended by section 16 of the Finance Act, 1956. Besides making some verbal changes in different sections, the words "subsection (3) of section 59 and amended or modified were necessary as provided in subsection (1.) or subsection (5) of section 59" occurring in section 57, were replaced by the words, figures and letters "section 58B, or on the valuation amended or determined, as the case miry be, under section 58A, or section 58BB, or on the application, if any, made under section 62 or section 63, subject to the provisions of sections 59, 59A and 59B", and it was expressly enacted that this substitution shall be deemed to have always been made. In section 58A, after the words "person delivering the account", the words, brackets and figures "whether before or after the commencement of the Estate Duty (Amendment) Act, 1953" were inserted and would be deemed always to have been inserted. A similar change was made in section 58B. Another section 58BB was inserted, after section 58B in the Act, to read as follows: "Notwithstanding anything contained in sections 58A and 58B, where any `valuation is determined by the High Court or the Federal Court in consequence of a motion made to it by the Board before the commencement of the Estate Duty (Amendment) Act, 1953, the Controller shah adopt the valuation and determine the duty payable thereon accordingly." In section 59, further subsections (3) and (4) were substituted by subsections (3) to (7). This new subsection (3) referred to determination of an appeal by the Appellate Tribunal and subsection (5) to assessment of valuation by a valuer or valuers to be appointed by the Appellate Tribunal. It may be mentioned that section 58A, before the 1956 amendment, related to the Controller's powers in respect of valuations and 58B authorized him to make an assessment in cases where no account was filed. An amendment was also made in section 59B, subsection (2), so as to make it clear that an appeal would lie to the Federal Court from any judgment of the High Court on a case stated under section 59A by the Appellate Tribunal, or on a motion made to it by the Board of Revenue, before the 1953 amendments. Changes were also effected in section 61, so as to allow the re‑opening of a case of valuation if it was discovered to be too low, either because too low a value was placed on the property or that any property was omitted from the account. The procedure outlined in section as 58‑A, 58‑B, 62 and 63 was made applicable to those proceedings as if the account called for under the amended section 61 from the accountable persons, and been submitted under sections 53 and

56. These two sections cast a duty on heirs or executors of a deceased person to submit a true account of the estate left by the deceased. After section 74 of the Act, the following section was inserted: "74A. Nothing in this Act as amended by the Finance Act. 1956, shall be deemed to empower the Controller to re‑open and re determine any case decided by a High Court or by the Board determining finally the rights or liabilities of any party under this Act." To it was appended the following Explanation: ''Explanation.‑‑Any payment or realization of estate duty by or from any accountable person or persons under the law as it existed before the first day of April 1956, or any certificate of discharge granted under such law shall not, in any way, affect the right or authority of the Controller to determine and realize under the law in force after the said first day of April .1956, the estate duty payable in respect of such property, but in all such cases the Controller shall deduct from the amount so determined the sum or sums paid by, or realized from, the accountable person or persons. This Explanation was, however, deleted by Ordinance XII of 1956, issued by the President in September 1956. The Ordinance was subsequently replaced by the Estate Duty (Amendment) Act, 1956, which provided that the Explanation at the end of section 74A shall be omitted and shall be deemed always to have been omitted. The Estate Duty (Amendment) Ordinance 1956, was at the same time repealed. After the 1956 amendments were made in the Act, the Controller attempted to re‑open the estate‑duty case of the petitioners under section 58‑A of the Act. The petitioners, therefore, presented the two petitions now before us, praying for the issue of the following writs: (a) a writ of certiorari removing to this Court all the orders passed by the Controller of Estate Duty, including the demand notice dated 2nd of October 1956, in connection with the determination of the valuation of the estate in question, so that they may be quashed; (b) a writ of prohibition prohibiting the Controller from taking any further action in regard to fresh determina tion of the valuation; and (c) a writ of mandamus directing him to comply with his statutory duty and not to demand any amount by way of estate duty which is not calculated on the value of the said estate as given in the account already delivered, and to issue the final certificate of discharge. The Islamic Republic of Pakistan, through the Secretary, Ministry of Finance, was also impleaded as a party to these petitions. The petitions were argued before us by Mr. Brohi and Mr. Manzoor Qadir on behalf of the petitioners and by the learned Attorney‑General on behalf of the respondents. The contentions raised by Mr. Brohi and Mr. Manzoor Qadir are: (1) Section 58‑A of the Act, which is now relied on by the Controller for re‑opening the case, did not by itself confer any power on him to do so. (2) Assuming that this argument was not correct, section 74‑A takes the present case out of the purview of the revising power given by section 58‑A ; and (3) that the amendments introduced by the Finance Act, 1956, in so far as they may be construed as enabling the Controller to charge petitioners with liability of paying estate duty in respect of agricultural land, was ultra vires the Constitution. I will first consider tire true scope of section 58‑A. It was suggested that the section was not retrospective at all and that, in any case, no more effect could be given to the retros pectivity envisaged by the section than was essential to carry out the intention of the legislature, as judged from the language employed. The section, as it now stands, authorizes the Controller, in respect of accounts filed before or after the amendment of 1953, to call upon the person concerned to revise the valuation if he so thinks fit, and in case of the person's refusal, to determine the valuation himself after such inquiry as may be necessary. The words "whether before or after the commencement. of the Estate Duty (Amendment) Act, 1953", must be deemed to have been there in the section always, as this is expressly provided by section 16 of the Finance Act, 1956. The section is, therefore, clearly retrospec tive in character and enables the Controller, inter alia to revise an account delivered to the Board of Revenue, because that was the authority to which accounts could be submitted before the 1953 amendments. In the face of the language employed by the legislature, it could be idle to contend that section 58A, as it now stands, is not retrospective in its operation, It was urged, however, that the section should be held confined to cases that are still pending and not to cases which had been finally: closed by payment of the sum due under the amended Act. It was urged that otherwise vested rights would be interfered with against all recognized canons of construction of such enactments. In support of this position reliance was placed on John Lemne v. Thomas Alezander Mitchell ((1912) A C 900), Alexander Cowan & Sons Ltd., and Nicholas Lockyer ((1904) 1 C L R 460), In re Joseph Suche & Co. Ltd. ((1976), 1 Ch. 48), In re A debtor ((1936) 1 Ch. 237), Lord Suffield v. Commissioners of Inland Revenue ((1908) 1 K B 865, at p. 891), and Lauri v. Renad ((1892) 3 Ch. 402 at p. 421). The principle that emerges from a consideration of these authorities undoubtedly is that a matter of substantive right which has become res‑judicata cannot be upset by a subsequent general change of the law in the absence of precise intention of making the change retros pectively, being evidenced in the new law itself, and that retroapectivity must be confined to the extent necessitated by the language employed by the legislature. Moreover, if an enactment is open to two constructions, one of which does away with a vested right and the other avoids that result, the latter ought to be adopted. No exception can be taken to the formulation of these, principles, but in every case the question is one of construction of the relevant statute. We lave, therefore, to see whether the legislature in the instant case envisaged clearly the re‑opening of cases that may have been closed by final payments in the sense advocated or not. I find a good deal of force in the argument raised on behalf of the respondents by the learned Attorney‑General that the charging section in the Act is section 4, which provides that estate duty shall be levied and paid upon the principal value ascertained as laid down in the subsequent sections, on all property, settled or not settled, which passes on the death of a person at the prescribed graduated rates. There follow several sections in the Act which lay down the procedure for assessing the true valuation of the estate, and it appears that it was open to the Controller to revise the valuation declared by an accountable person under section 58‑A, Even in cases where the account had not been submitted to the Controller, he could have called for necessary particulars of the property under section 54 and in any event he could arrive at his own valuation of it under section 58‑B. However, owing to the defect left 'in section 57 before the 1956 amendments, the full estate duty could no: be realised but only the duty assessable on the account declared. This means that the liability could be determined a, a higher figure under the Act but recovery could only be made under section 57 on the basis of the declared account. The defect in the Act was removed by the 1956 amendments so that it became possible under the amended section 57 to realise the estate duty on the proper valuation as distinguished from the declared valuation, and the change in that section was given retrospective effect. Even in respect of cases in which final payment had been made under the Act as it stood before the 1956 amendments, section 61 could be pressed into service by the Controller where he was clearly of the opinion that the original valuation was too low, and then the procedure contemplated by sections 58‑A,. 58‑B, etc. would become applicable. In the circumstances, I think a clear intention of the legislature can be spelt out that even in cases which had been closed by final payment, the Controller was empowered to re‑open the case and reassess the valuation if material had come into his possession justifying that course. The objection, therefore, that the previous payment had for all time closed the door to reassessment of the valuation and that the previous assessment of estate duty should in some sense be regarded as res‑judicata cannot be sustained. No indefeasible vested right appears to have accrued to the petitioners. The right to have the valuation determined by the High Court or the Federal Court had also not accrued to the petitioners, before the 1953 amendments came into force, as the Board had not, by then, finalised the amounts and there was no occasion for a reference to either Court. The question then arises whether section 74‑A, as inserted in the Act in 1956, protects the petitioners. There is no doubt that the original draft of this section, which was placed before the legislature, contemplated the petitioners' case and clearly provided for its being re‑opened by the Controller. The original draft was in the following terms:‑ "Subject to the provisions of sections 59, 59‑A and 59‑B, any power or authority exercisable by the Controller as from the third day of July 1953 in virtue of the Estate Duty (Amendment) Act, 1953 (XV of 1953), shall also retrospec tively be extended, and be deemed to have always extended, to all properties passing or deemed to pass in the case of any person dying at any time on or after the first day of April 1950 and before the third day of July 1953, irrespec tive of any action taken or omitted to be taken by the Board or any proceedings taken in any Court by any party in regard to any such property under the law in force before the third day of July 1953 or as it existed before the first day of April 1956," The explanation added to the draft, which was even allowed to exist in the Bill as finally passed and was deleted as redundant finally by the Estate Duty (Amendment) Act, 1956 (XLI of 1956), left absolutely no scope for any doubts on this score. Section 74‑A, however, as finally enacted, placed a curb on the power of the Controller to re‑open and re‑determine cases in which a High Court or the Board of 1B Revenue had determined "finally the rights of liabilities of any party under the Act". To this extent, therefore, limitation was placed on the retrospectivity of the other provisions introduced in 1956. To exact scope of section 74A, however, is a point of contest between the parties. The learned Attorney‑General has suggested that the words "under this Act" occurring in section 74A should go with the expression "decided by a High Court or the Board" and not with the expression "rights or liabilities of any party". In other words, he suggests that the decision of the High Court or the Board which is protected, must have been given in exercise of powers conferred by the Act and not in exercise of any other jurisdiction. On the contrary, learned counsel for the petitioners have urged that this interpretation would make the provision entirely redundant. It is pointed cut that section 58BB already saves valuations determined by the High Court or the Federal Court before the commencement of the Estate Duty (Amendment) Act, 1953. After the 1953 amendments, the High Court or the Federal Court would only decide questions of law referred to them. Of course, the answers to those questions may be decisive of "the rights or liabilities of the parties under the Act", but the position cannot be assailed that answers returned by the High Court or the Federal Court, as the case may be, would be anyhow binding on the Appellate Tribunal and the Controller under the Act itself, apart from the provision of section 74‑A. Redundancy must not be unnecessarily attributed to the legislature. What then was the intention of the legislature in enacting section 74‑A ? 1 am inclined to think that the legislature by this provision intended to give immunity from attack to decisions of a High Court which determined finally the rights or liabilities of any party under this Act, in exercise of any other jurisdiction and not merely in exercise of the powers conferred by this Act. In any event, the section is open to two constructions and in consonance with the well‑recognized canons of interpretation of fiscal statutes, the one that favours the subject ought to be adopted. I would, therefore, hold that if the High Court has given a decision on a question which determines finally the rights or liabilities of any party under the Act, in whatever proceedings that may have been done, the section could be invoked by the party concerned. I am unable to accede to the contention raised by the learned Attorney General that section 74‑A was enacted merely ex‑abundanti cautela. The omission of any reference to the Federal Court in section 74‑A might call for some comment. The only rational explanation for this omission I can think of is that, in all probability, the legislature knew of no case in which the Federal Court might have given an opinion during the interval between the 1953 and the 1956 amendments. The next question that falls to be considered in this case is whether there was any case decided by a High Court determining finally the rights or liabilities of any party under this Act. I have given my anxious consideration to this question and have reluctantly come to the conclusion that there has been no decision by this Court within the meaning of section 74‑A. The previous writ petition was merely dismissed as in fructuous in view of the statements made by the parties. It is true that the learned Advocate‑General, as he then was, conceded in his statement that under the Act, as it then stood, no more could be realised by way of estate duty than was assessable on the account declared. On behalf of the Controller, he, however, added that if the Act was subsequently amended, the Controller should not be under stood to have abandoned his right to re‑open the case. The petitioners might conceivably, on the basis of this statement made by the learned Advocate‑General, have pressed into service the general principle of estoppel; but there was actually no "decision" by this Court. In Wharton's Law Lexicon, 14th edition, "decision" is equated with a "judgment", and the words in section 74‑A "determining finally the rights or liabilities of any party" clearly envisage a definitive judgment. as receiving protection under this section. When an action, motion or application is dismissed by a Judicial tribunal after a trial or hearing, it is always a nice question whether anything can be said to have been decided, so as to conclude the parties, beyond the actual fact of the dismissal. As Spencer Bower on res‑judicata says in his book (1924 edition) at page 29: "Prima facie, and in the absence of materials on which such a necessary inference can be established, a dismissal is not a decision of any question of title without an express declaration of the Court". The learned author further remarks at page 59 of his book that "it is incumbent on anyone setting up res‑judicata as a bar to the claim or defence (as the case may be) of the opposite party to establish (if disputed) that the particular decision relied upon was in fact pronounced as alleged". Where, of course, the actual decision of dismissal could not have been legitimately or rationally pronounced by the tribunal without at the same time and in the same breath, so to speek, deter mining that question or issue in a particular way, such determination, though not declared on the face of the recorded decision, should be deemed to constitute an integral part of it as effectively as if it had been made so in express terms, but beyond these limits there can be no such thing as res judicata by implication. Of course, in the case of a judgment or order in a naked and general form it may become essential to refer to the pleadings or affidavits of the parties in order to ascertain what, if any, the decision of particular question, or issues was, impliedly consented or Submitted to by the party against whom such consent or, default judgment of order was made, as the learned author says at page 114 (if his book. The distinction' of the present case, however, is that no order was passed against the respondents in the) previous petition. Ail that really happened was that. in viper of the agreement of the parties on the questions raised ,and the statements made by them Iii Consequence, in Court, the Bench stayed its hand and considered it unnecessary to pass or pronounce any judgment or decision. The argument that the substance and not the form of the order should be looked at would, not in my opinion, justify us in disregarding this fundamental fact that actually the Court declined to make a pronouncement on the issues raised. It is, of course, unfortunate for the petitioners that no formal direction or order was issued to the respondents in the earlier writ petition. It is also correct that normally when there is a confession of judgment in a civil action, a judgment and decree follow accordingly. If this Court had decided to issue a direction or a writ in consonance with the statements of the parties, the matter would have been placed beyond dispute. But, as I have said, unfortunately for the petitioners this was not done. The settlement between the parties may have taken place as a result of arguments addressed to the Court, but in the absence of a formal order by the Court, I find it. difficult to say that there was a "decision" by the Court. The fact again that on another motion by the petitioners, the Court recorded its opinion that the certificate issued by the Controller should be taken as discharging the liability of the petitioners under the Act as it then stood, would not alter the position materially, as the opinion was not recorded after hearing both parties. It seems to me that this Court merely interpreted the previous statements of the parties rather than a prior judicial order. The Court never lent its judicial sanction or coercive authority to what the parties had. agreed among themselves, albeit in Court. In this connection our attention was drawn on behalf of the petitioners to a decision of the Madras High Court reported as Narasimha Raju v. Brundavanasahu (A I R 1943 Mad. 617). In that case a revision petition had been withdrawn from the lower Court and dismissed because of a decision of the High Court to the effect that the lower Court had no jurisdiction in the matter. The order of dismissal was non-the-less treated as a "final decision" within the meaning of section 115, Civil P. C. and it was held revisable by the High Court. In my humble judgment this authority does not advance the case for the petitioners to any extent. The decision of the earlier petition may be regarded as a "decision" in the broad sense, but I consider that it was not a "decision determining finally the rights or liabilities of the parties under the Act". The result may be highly unsatisfactory from the point of view of the petitioners one of whom told us at the Bar that he had procured the amendment of the draft section 74‑A, to safeguard their rights that accrued to them owing to the previous decision of their writ petition, by vigorous lobbying: to the National Assembly. But the question really turns on the language employed by the legislature and not on any supposed intention that might have been entertained by the accommodating legislators. There remains the constitutional question raised in this case to be considered. In tile original Government in India Act, 1935, iii none of the three Legislative Lists included in ,Schedule 7 to the Act, was there any item bearing on estate duty. For the first time, in 1945, the British Parliament inserted item 56‑A in the Federal Legislative List by enacting 8 and 9 Geo. 6, Chapter

7. This authorized legislation regarding estate duty in respect of property other than agricultural land by the Federal Legislature and in respect of agricultural land by the Provincial Legislature, by virtue of a corres ponding item, 43‑A. inserted in the Provincial List. A definition of estate duty was incorporated in section 311 (2) of that Act to read as follows:‑ 'Estate duty' means a duty to be assessed on or by reference to the principal value, ascertained in accordance with such rules as may be prescribed by or under the. Federal or Provincial laws relating to the duty, of all property prising upon death or deemed, under the provisions of the said law so to pass," The Constituent Assemble of Pakistan by the Government of India (Amendment) Act, 1948, amended entry 56‑A of List I of the Seventh Schedule by omitting the words "other than agricultural land" and deleted entry 43‑A (roar the Provincial List. The definition of estate duty in section 311 (2) was also amended in consequence. Henceforth, therefore estate duty became a Federal subject of legislation. With the enactment of our present Constitution, however, there again took place a bifurcation of legislative power in respect of estate duty. Estate duty on agricultural land was restored to the Provincial List by item 74 and in the Federal List item 26 referred to estate and succession duty in respect of the property other than agricultural land. Article 218 of our Constitution, nevertheless, still defined estate duty as meaning a duty to be assessed on, or by reference to the principal value, ascertained in accordance with such rules as may be prescribed by or under any Act of Parliament relating to the duty, of all property passing upon death or deemed under the provisions of the said Act, so to pass. Apparently it escaped the notice of the draftsman of the Cons titution that this definition was inapt in view of the division of legislative power on the subject between the Federal and Provincial Legislatures. However, the difficulty created by this definition could be got over by reference to the opening words of Article 218, which assign the meanings to the expressions defined in the Article. as given therein, "Lin-less the context otherwise requires". The definition of estate duty in this Article would be apt. in the case of item 26 of List I, but would be inconsistent with item 74 of the Provincial List. The scheme of the Constitution follows the pattern laid down by the Government of India Act, 1935 and confers exclusive powers on the Federal and the Provincial Legislatures, in respect of items included in the Federal and the Provincial Lists respectively, subject to the provisions of Articles 105 to 110 of the Constitution, which provide for the supremacy of the Federal Legislature in the concurrent field of legislation. The definition of estate duty, therefore- in Article 218 must be accepted with the necessary modifica tion in view of the fact that estate duty on agricultural land is included in the Provincial List. The Estate Duty Act, 1950, was passed by the Central Legislature when that body alone was competent to enact laws on the subject. Article 224 of our present Constitution keeps the old Act, in force, notwithstanding the repeal of the Government of India Act, 1935, the Indian Independence Act, 1947 and all other enactments amending or supplementing those Acts, by Article

221. The Act is, however, continues in force "save as may be otherwise expressly provided in the Constitution" and "so far as applicable with the necessary adaptations, until it is altered, repealed or amended by the appropriate legislature or other competent authority". The Finance Act of 1956, which introduced amendments in the Act, was a measure passed by the Federal Legislature, after the enforcement of the new Constitution. It is. therefore, forcefully contended that these amendments could only take effect in respect of estate duty on property other than agricultural land, as after the enforcement of the Constitution the subject of estate duty on agricultural land is within the exclusive legislative competence of the Provinces. The necessary inference is drawn by learned counsel for the petitioners that, if at all, the Controller will be able to enhance the valuation of that part of the property of the estate in this case, which does not fall within the definition of agricultural land, and to that extent only he may possibly be able to re‑open the case. This argument is sought to be met by the learned Attorney‑General by the suggestion that the Finance Act of 1956 merely effects a procedural change in the Estate Duty Act, and that this was within the legislative competence of the Federal Legislature as "procedure" is in the Concurrent List in the new Constitution. Item I of the Concurrent List in the Fifth Schedule to the Constitution includes, inter alka "Civil and Criminal law, including the law of evidence and procedure". The learned Attorney General urged that in respect of procedural matters relating to items even in the Provincial List, the Federal Legislature would be competent to enact laws, by virtue of item I of the Concurrent List. He suggested that a possible conflict between Federal laws thus passed and laws enacted by a Provincial Legislature could be resolved by a reference to Articles 106 and 110 of the Constitution. In case of such a conflict the Federal law would prevail unless a subsequent Provincial law had received the assent of the President and was thus allowed supremacy over the Federal law within the Province. According to the learned Attorney‑General, the 1956 amendments did no more than provide a more effective machinery for the assessment of valuation of an estate for the purpose of determining estate duty liveable under section 4 of the Act. It was pointed out that even up to the 1956 amendments, in the instant case, the account was not finalised and was open to revision by the Controller, but owing to the defective wording of section 57, recovery was confined to what was payable on the account delivered. I do not think the argument raised by the learned Attorney‑General is sound. If the position adopted by him were to be conceded as correct, this would make the legislative lists in the Fifth Schedule to the Constitution, extremely fluid in character, and there would be no demarcation left between Federal and Provincial legislative functions. In some cases procedural and substantive law may be so mixed up in an enactment as to be almost unseverable. Moreover, there is authority for the view that the items in the Provincial List imply a power to enact the procedural part of the law in respect of those items. Reference in this connection may be made to Bikram Kishore v. Tafazzal Hossain (AIR 1942 Cal. 587) and United Provinces v. Atiqa Begum (AIR1941FC16). These decisions support the proposition that the words "law with respect to a matter" would include substantive as well as procedural law. It was also held by the Calcutta High Court in Stewart v. Bojendra Kishore (A I R 1939 Cal. 628) that the words "Civil Procedure" in the Concurrent Legislative List of the Govern ment of India Act, 1935, must be held to exclude matters relating to jurisdiction and powers of Courts since special Of provision is made for these items elsewhere in the lists. The sounder view, therefore, seems to be that express items in the exclusive Federal or Provincial Legislative Lists, must be held excluded from the purview of items in the Concurrent List so far as the pith and substance of those items is concerned. To ‑hold otherwise would mean not only that the Federal Legislature can encroach on the Provincial List in the guise of enacting procedural laws but that the Provincial Legislature also can invade the Federal legislative sphere because of the inclusion of "Civil Procedure" in the Concur rent List. This would lead to chaotic conditions in the legislative field. Indeed in a legislative race of this character, the Constitutional stake‑holders might expire, due to sheer exhaustion. It seems, therefore, unnecessary to consider the exact scope of the word "procedure" to elucidate which term the learned Attorney‑General referred us to various text‑books and cyclopaedias. Apparently the term "Civil Procedure" in the Concurrent List should be held to mean general procedure and not procedure ancillary to the enforcement of substantive law in respect of items in the exclusive Legislative Lists, as was suggested by the Calcutta High Court in Bikram Kisbore v. Tafazzal Hussain, cited above. It must be held, therefore, that the 1956 amendments of the Act, could operate only in respect of property other than F agricultural land. The Act would still remain workable if the scope of the 1956 amendments is restricted in this sense and the principle of sever ability laid down in Attorney‑General for Alberta v. Attorney General for Canada ((1947) A C 503) would apply. Since in the present case we are concerned with the assess ment of estate duty which had already accrued due before the enforcement of the new Constitution and the effect of the 1956 amendments is held to be restricted to property other than agricultural land, the further question as to whether the functionaries of the Federation, like the Controller, would be able to realize estate duty .on agricultural land or not, in future, as executive power must be conter minous with the legislative power of the Federation, calls for no consideration. The conclusion I have reached, therefore, is that the Controller is empowered under the amended Act to re‑open the valuation of property other than agricultural land. He could then add up that valuation to the valuation of agricultural land already declared by the assessed and form his own estimate of the total duty payable 'under the Act. I would therefore issue a direction to the respondents in this sense, but would leave the parties to bear their own costs, in view of the difficult nature of the questions raised in this case. M. R. KAYANI, J.‑‑On all points but one, which are involved in this case, I am in agreement with my Lord the Chief Justice. The one point on which I respectfully differ relates to the interpretation of the word decision in section 74‑A, Estate Duty Act 1950, which is to the following effect: "74‑A. Nothing in this Act as amended by the Finance Act, 1956 shall be deemed to empower the Controller to re‑open and re-determine any case decided by a High Court or by the Board determining finally the rights or liabilities of any party under this Act." I have found it easier to hold that the order of dismissal by the High Court in Writ Petition No. 39 of 1955 amounted E to "a case decided by a High Court . . . . determining finally the rights and liabilities of any party under this Act." The history of the cage and of the changes in the law is given in the main judgment. The history of the litigation in this Court may be profitably summarised here again. Writ Petition No. 39 of 1955 maintained that the Controller could not reopen the case, and that as "the amending Act X` of 1953 has not affected the provisions of section 57 of the Act of 1950, which still continues to refer to sections and subsections which incorporated the original scheme of assessment", ever if the case can be reopened, there is no mode of recovery available under section

57. At the hearing after notice, the learned Advocate‑General of Pakistan made the following statement: "The Controller of Estate Duty does not intend to make any collections from the petitioners in excess of the estate duty payable on the accounts declared by them to the Central Board of Revenue until the clerical mistake that has crept into section 57 (amended) is suitably rectified. On the present wording of section 57 (amended), I concede that no claim can be made in excess of the amount payable on the accounts declared. The balance of the estate duty due on the accounts declared is Rs. 79,

589. This may be deposited in the State Bank and a draft be given in the name of the Controller of Estate Duty, who will issue a discharge certificate under section 58 of the Estate Duty Act." Thereupon Mr. Manzur Qadir, counsel for the petitioners, stated: "My clients have brought the money in Court and have sent it for deposit to the State Bank. I will hand over a draft as suggested to the Advocate‑General today. I may, however, submit that the error in section 57 is not really a clerical error." And the Bench, consisting of the Chief Justice and Kaikaus J., passed the following order: "In view of the statements of counsel made above, the petition has become infructuous and is dismissed as such. There will be no order as to costs." That is to say, "dismissed as infructuous." The position is now this. The petitioners said that the Controller could not recover further duty so long as section 57 stood thus. The Advocate‑General said that position was correct, and so long as the "clerical mistake" was not corrected, the Controller will not make any collections. He conceded that no claim could be made by the Controller and stated that if the balance due on the accounts declared were paid, a discharge certificate would be issued under section

58. Mr. Manzur Qadir did not ask for his petition to be dismissed. He merely said his clients were making payment of the balance, that is to say, to enable them to get a discharge certificate. My Lord the Chief Justice, who wrote the order of dismissal, is now pleased to concede that if this Court had decided to issue a direction or a writ in consonance with the statements of the parties, the matter would have been placed beyond dispute". It is quite clear even without that concession that the Court could have passed either of the two orders, and I respectfully suggest that the more proper order would have been one of issuing a direction that a discharge certificate should be granted. That is the normal procedure in civil suits: When the defendant admits the averments in the plaint, a decree is passed in favour of the plaintiff. The suit is never dismissed. In the exercise of the writ jurisdiction or any other civil jurisdiction, where no specific rules of procedure are laid down, we follow the broad rules of civil procedure. It may be argued that if the respondent in a writ petition expresses his willingness to do what is demanded of him, it should be unnecessary to command him to do it. That is true, but suppose he makes a statement in Court and does not give effect to it for a year, the Court cannot say that the respon dent is in contempt, because no time‑lime: was fixed for the performance of duty. And it is no satisfaction to the petitioner that the respondent is punished for contempt, if his own business is obstructed for a year. In such a case it will be necessary for the petitioner to bring another petition, and indeed this is what happened in the present case. Did the Court decide anything? I think it decided as much as a Court decides when one party alleges a matter in issue and the other party admits it. The Court never says to the plaintiff that although the defendant admits the case, "I am going to ask you to lead evidence", unless complicity is suspected, as in a divorce suit. If an admission were not to operate as res judicata, the defendant could always find it convenient to wriggle out of it in the next litigation. It will be observed that although section 11, C. P. C. limits the principle of res judicata to cases where the matter in issue has been heard and "finally decided", Explanation III to the same section, by stating that the matter in issue "must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other" extends the principle to cases of mere admission, even though it be only an implied admission. Thus does it happen that an implied admission is also treated as a "final decision" within the meaning of section

11. And yet section 11 is not exhaustive. The order of the High Court in effect, therefore, was "In view of the admission of the Advocate‑General, the petition is accepted." This is the exact effect of the words "dismissed as infructuouse". It is not merely "dismissed". And the matter is finally decided between the parties; for the petitioner says the case cannot be reopened and the respondent says this is correct. The petitioner says tie wants a discharge certificate and the respondent says he will give it. A case is not necessarily decided by an order of accept ance. It may tie decided by an order of rejection or dismissal. Thus when the suit is for a declaration of owner ship and it is dismissed oil merits, there is decision determin ing finally the right of the, plaintiff, namely that he is not entitled to the property claimed by him. The word dismissal by itself does not suffer from any defect or disability. In the present case its use was intended to mean that the claim having been admitted: there will be do formal direction. Next, section 74‑A requires that the decision should have finally determined the rights or liabilities of a party. Was not the liability of the petitioners filially determined ? What they asked for was granted to them, and they could not have appealed to the Supreme Curt. For if they hart appealed, they would have been told: "But what is it that you want You have got what you wanted," I think they should hive said : "We want the word 'dismissal' to be replaced, for Parliament is going to introduce section 74‑A", if only they could have said it without appearing ridiculous. We are, therefore, attaching unnecessary importance to verbal distinctions, when we insist that a certain form should have been given to the order, although in substance it would not have altered the rights or liabilities of the parties. Particularly in this case. For section 74‑A itself is not in any such form as this: "Nothing shall empower the Controller to reopen any case in which a writ or direction has been issued by the High Court requiring the Controller to act in any particular manner." If an order of the High Court dismissing the petition lays the matter at rest, I should regard it a decision within this section. But if any doubt existed as to the effect of the High Court's order of dismissal, it was resolved by the Chief justice . . . . . . himself in a subsequent "clarification". After the order of dismissal in Writ Petition No. 39 of 1955, the Controller sent to the petitioner's two certificates of a "somewhat ambiguous" phraseology, as the petitioners called them, and when the petitioners sought a clarification, they were told that the certificates were "not in full and final discharge of the existing liability under the present law". Thereupon they brought Writ Petition No. 96 of 1956, which was heard by the Chief Justice and Shabir Ahmad, J. and which was dismissed without the issue of notice but with the following order: "We have seen the record of proceedings in W. P. No. 39 of 1955, The intention clearly was that with the deposit of Rs.79,589 by the petitioners, the liability under the Estate Duty Act as it stands at present, would be fully and finally discharged. Even if therefore the Controller has chosen other words importing an ambiguity, it does not alter the legal position viz. that with the above mentioned payment, the duty liveable under the Act was fully paid up and this was conceded bbl the learned Advocate‑General of Pakistan. With this clarification we dismiss the petition as it requires no further orders," It would be idle to say that the High Court passed, an order of dismissal in limine because there was no substance in the petition. The learned judges went through the record of Writ Petition No. 39 and were of the opinion that notwithstanding the choice of ambiguous words by the Controller, the legal position was that no more duty was leviable under the Act, and "with this clarification we dismiss the petition, as it requires no further orders". The Controller was not served with a notice, and although my Lord the Chief Justice now says that his opinion on the second petition "would not alter the position materially, as that opinion was not recorded after hearing both parties", as I understand the second order of dismissal, the position was so clear to their Lordships that they found it unnecessary to issue notice to the Controller, They no doubt expected Mr. Manzur Qadir, who appeared for the petitioners, to take a copy of their opinion to the Controller so as to snake it clear to him that notwithstanding his ambiguous phrases the proceedings in Writ Petition No. 39 amount to a discharge of the petitioners' liability. If they had any doubt in their minds, they would have issued notice to the Controller because their opinion was in favour of the petitioners. The reason why they found it unnecessary to issue notice and pass a second order on the same subject was that the proceedings culminating in the first order clearly determined the issues between the parties. A Court does not issue futile orders. I have come to this conclusion after considerable hesita tion, because I realize that normally Court "decides" when it passes an order, whether on the statements of parties or on adjudication, not when it does not pass an order. And III form the Court passed no order. But there is no doubt that everybody interested could have said thereafter that as the law stood then, the matter had been decided in the High Court. In my judicial conscience there has raged a petty war between form and substance, and in this instance substance has triumphed over form, without injuring any principle. For I shall not hesitate to uphold formality where it rests on a principle. I must say that the vacillating policy of the Central Government between chasing the petitioners with amendments which were to all appearances intended to cover the peti tioners' case alone as the original draft of section 74‑A shows‑and the semi‑potent drafting effort to protect them from the Controller's wide sweep in the present form of section 74‑A, has put us to considerable inconvenience. If what Lt. Col. Abdul Ghafoor Khan, one of the petitioners, stated before us at the Bar and in the presence of the Attorney‑General‑‑‑that he had prevailed upon all but two members of Parliament to alter the draft in his favour‑is true, we have reason to be despondent. And there is no doubt that while the original draft was intended to hit, the final draft was intended to protect. MUHAMMAD SHAFI, J.‑

I respectfully concur with my Lord the Chief justice that the "objection that the previous payment had for all tinge closed the doors to reassessment of the valuation and the previous assessment of estate duty should in some sense be regarded as res‑judicata cannot be sustained, because no indefeasible vested right had accrued to the petitioners, nor the right to have the valuation determined by the High Court o: the Federal Court had accrued to them before the 1953 amendment came into force as the Board had not by then finalised the accounts and there was no occasion for reference to either Court." I also with all humility concur with His Lordship that section 74‑A of the Estate Duty Act was not enacted merely ex abundanti cautela or that the order of the Division Bench of the Lahore High Court passed on the 23rd of January 1956, can be considered as a "decision determining finally the rights or liabilities of the parties tinder the Act." I also agree with the finding of my Lord the Chief Justice that the 1956 amendment of the Estate Duty Act could operate only in respect of property other than the agricultural land, but this I do with consider able uneasiness of mind which is caused by the defective legislation resulting in the loss of several lacs of rupees to the State. At one time I was of the opinion that so far as the estate duty on the agricultural land which had accrued prior to the promulgation of the Constitution was concerned, the Parliament continued to be invested with the necessary jurisdiction to amend the Estate Duty Act, but then Article 106 of the Constitution of the Islamic Republic of Pakistan hereinafter referred to as the Constitution Act, distributed the legislative powers between the Parliament and the Provincial Legislature and imposed a ban on the Parlia ment to make a law with regard to the estate duty on the agricultural land without any saving clause. I am conscious of the fact that this reading of the Constitution will result in some most absurd and impossible consequences for the following possible situations might arise with regard to the estate duty on the agricultural land of a person who died before the Constitution‑day. (1) The estate duty on the declared account on all kinds of property was paid to the Centre before the Constitution was passed, and no more amount was found to be due from the accountable persons. (2) The estate duty on the declared account as well as on the amount which was assessed under the Act before it was amended in 1953 was paid before the Constitution was passed. (3) The estate duty on the declared account was paid. but the amount found due by the Board or the High Court under the Act prior to its amendment in 1953, was still in arrears when the Constitutional law was passed. (4) The estate duty on the declared account as well as the amount assessed by the Controller after the Act was amended in 1953 was paid before the Constitution Act was passed. (5) The estate duty on the declared account was paid but the amount which was found due from the accountable persons on the assessment made by the Controller was still in arrears when the Constitutional law was passed, and lastly. (6) The estate duty on the declared account was paid, but the Controller was still in the act of determining the valuation of the agricultural land on the basis of which estate duty was eventually to be paid when the Constitution Act was passed. Either it will be said that in the above situations so far as the estate duty on the agricultural land already paid to the Centre is concerned, it is not affected by the Constitution, but the unpaid estate duty on such land is affected by it, which can only be realised by the Provincial Government according to the laws framed by it. That would introduce inconsistency and anomaly in law, because two authorities would be entitled to receive the same duty on the same property, or the whole of the estate duty on the agricultural land will be considered to be realisable only by one authority. Then by reason of the passing of the Constitution Act, this authority being the Provincial Government, it can legitimately insist that all duties which had already been recovered by the Centre be refunded to it. That will be logical, but will create insurmountable difficulties. It is true that the defect in section 57 of the Estate Duty Act was of highly technical nature and so far as this section was concerned, the Amending Act 1956 was only a curative legislation, but then even the curative legislations like all other legislations are subject to general restrictions imposed by the Constitution Act. In this case, the all‑important saving clause achieving a continuance of the power of the Central Legislature to enact laws with regard to the estate duty on the agricultural land of the person who died prior to the passing of the Constitution Act was missing and this defect had crept in on account of bad and careless drafting of the one legislation, which being of paramount importance, was entitled to be drafted and enacted with utmost care and precision. The Courts unfortunately cannot remove this defect by importing the saving clause into the Constitution Act, because that would in that case not amount to construing the Act but enacting. one Another point of view which struck me was that the Estate Duty Act without section 57 was complete in itself, and therefore, even if there was a defect in this section, the relevant authority could go on doing its duty in determining the principal valuation of the property on which eventually the estate duty was payable and then: give a certificate under section 67 where after the functions on that authority ended and those of the Collector and the Board, as the case may be to collect the estate duty, commenced. In that case it shall have to be held that section 57 was enacted merely ex abundanti cautela. Now, the superfluity cannot normally be attributed to any part of an enactment unless it is absolutely necessary. The learned Advocate‑General, who the present Attorney General then was, by conceding on the 23rd of January 1956, that the Controller had no jurisdiction whatsoever to realise more than the amount which was payable on the account declared, admitted that section 57 was not redundant. The Courts are, therefore, completely helpless in the matter and it is for the Legislature to remove the defect in the Constitution Act so that a particular individual does not evade the payment of the tax which is due from him to the State. An amusing but shocking and ugly argument was addressed at the Bar with regard to the enactment of section 74‑A which has been alluded to by my esteemed Lord the Chief justice in the judgment which he proposes to deliver and in the dissenting judgment of my learned brother Kayani, J. That is a glaring example of legislature corrupted which is most regrettable. I consider it my duty, to strike a note of warning to the Central and the Provincial Governments that the more frequent enactment of defective, vague, and void laws is causing great hardship to the people and the country. The requirement is fundamental that a valid legislation is pro mulgated by a legally constituted institution which is empowered to enact laws. The law which the Legislature enacts must reflect the demands of the society as a whole and not that of one or two individuals, and should determine the broad principles or policy for social conduct. The ever increasing complexities of legislation and tile need for precise and careful drafting of the laws make it necessary for the Governments concerned to maintain special departments consisting of persons who are skilful and efficient in that line. With these remarks I most respectfully entirely agree with the judgment and the conclusions arrived at by my Lord the Chief Justice and concur with His Lordship in issuing the directions proposed in the order. (BY THE COURT) In accordance with the majority decision, we issue a direction that the Controller should refrain from revising the valuation of agricultural land in this case, though he is at liberty to revise the valuation of other property. The valuation thus revised for the other property, can be added to the valuation of agricultural land already declared by the accounting party, for the purpose of assessment of the estate duty on the whole estate. The parties would be left to bear their own costs. A. H. Order accordingly.