P L D 1965 Supreme Court 300 (PLP)

CORNELIUS, C. J.‑‑The question which arises for decision in this certificated appeal is as to the competency of an appeal under clause 10 of the Letters Patent of West Pakistan High Court from a decision given by a learned Single Judge of that Court on a reference made to the High Court under section 84(2) of the Cantonments Act. This subsection enables an official under that Act when dealing with a case of the relevant kind in last resort under its provisions, to refer to the High Court for decision a reasonable doubt which may arise in a matter of taxation. The officer making the reference is required to state the point of doubt and to forward this with a statement of the facts and his own opinion to the High Court. The further proceedings in the High Court are to take place in accordance with the provisions of Order XLVI of the Civil Procedure Code, so far as they may be applicable. Rule 3 of that Order, construed mutatis mutandis, requires the High Court to decide the point referred, after hearing the parties, and to "transmit a copy of its judgment" to the referring authority and such authority is required to "proceed to dispose of the case in conformity with the decision of the High Court." Rule 5 provides power to the High Court to return a case which has been referred "for amendment" and also to "alter, cancel or set aside any‑order‑passed or made in the case out of which the reference arose and make such order as it thinks fit." It would seem that this reference to an order made by the referring authority is one within the meaning of rule 2, which enables such authority, after making the reference, either to stay the proceedings or to continue with the case and to make an order, which however is to be contingent upon the decision of the High Court on the point referred, and is not to be executed until the Nigh Court's judgment is received. In the present case, a reference was made by the Collector of Karachi, regarding the assessment of certain premises known as "Semerest House" in Karachi Cantonment, and an answer to the reference was given in a considered judgment by a learned Single Judge at Karachi. However, before further action could be taken to transmit the decision to the referring authority, the present appellant moved a Letters Patent Appeal before the High Court where two learned Judges held that the answer of the learned Single Judge could not be treated as a judgment within the meaning of clause 10 aforesaid as it was only of an advisory character. They observed further that after such a decision by the High Court "no decree is prepared and the order passed is not executed". They concluded that the jurisdiction on reference under section 84(2) of the Cantonments Act is only consultative and for this purpose they relied in the main on the judgment of the Privy Council in the case of The Tata Iron and Steel Co. Ltd. (AIR1923PC10). They accordingly dismissed the appeal as incompetent, but at the same time certified the case as fit for appeal to the Supreme Court. Mr. Sharifuddin for the appellant urged that the case before the Privy Council related to the provisions of section 51 of the Income‑tax Act of 1918 which were later amended and are now contained in section 66 of the Income‑tax Act, 1922. The decision of the Privy Council was confined to the question of the competency of the appeal before them, and in the premises, their decision is not of direct assistance in determining the competency of the Letters Patent Appeal, which was governed by the provisions of clause 10 aforesaid. He urged also that the decision required to be reconsidered. Further, he contended that in view of the provisions of section 84 of the Cantonments Act, it could not be denied that a decision given by the High Court on a reference under that section had effect as a judgment, and by the statute it was required to be carried into effect by the departmental authorities, apart from which, the High Court itself was empowered under rule 5 of Order XLVI, which was applicable to the case, to alter or cancel the departmental order, and substitute for it such order as it thought fit, in conformity with its own judgment. Mr. Shah Jamil Alam appearing for the Estate Officer, Pakistan Government, at Karachi, has however, raised a bar to the jurisdiction under clause 10 on a wider ground, namely, that that clause relates expressly to the civil jurisdiction of the High Court, and confines appeals thereunder to certain judgments of a Single Judge made in pursuance of section 108 of the Government of India Act, 1915. That section provided for two types of jurisdiction vested in the High Court namely, original jurisdiction and appellate jurisdiction. In the present cases the jurisdiction was of a special nature, being founded on section 84 of the Cantonments Act. It could not be described as an "original jurisdiction" since it expressly related to the resolution of a question of doubt arising in an appeal in a departmental proceeding. It was clearly not appellate jurisdiction, qua the civil jurisdiction of the High Court itself, since its effect was to determine an appeal which lay outside the High Court jurisdiction in civil matters. Mr. Noorul Arfin appearing for the Executive Officer Karachi Cantonment associated himself with the argument presented by Mr. Shah Jamil Alam. Mr. Sharifuddin was unable to show that within the terms of clause 10 of the Letters Patent, an appeal from an order made upon a reference as in this case was competent. In the course of the argument it was suggested that the only mode of correction, in the judicial procedure, applicable to the order of the learned Single Judge in this case, might be by direct appeal to the Supreme Court, but only by special leave, and Mr. Sharifuddin stated that he proposed to have recourse to this remedy. This appeal is dismissed, but in the circumstances we make no order as to costs. A. H. Appeal dismissed.