P L D 1960 (W (PLP)

4. He had disputed them in the previous writ petition No. 101 of 1957. The reason was that the Controller of Estate Duty had called upon the petitioner by his letter, dated the 29th of September 1953, to furnish certain information, and on the refusal of the petitioner to do so, had proceeded to evaluate the property himself. The value of the property according to his order, dated the 31st of July 1954, was Rs. 12,45,000 and the petitioner was called upon to pay Rs. 3,84,894 as estate duty. The petitioner preferred an appeal to the Income‑tax Appellate Tribunal, which was dismissed on the 1st of November 1955. He then made an application under section 59‑A of the Estate Duty Act to the Income‑tax Appellate Tribunal for referring certain questions to the High Court. That application was rejected on the ground that questions Nos. 1 and 2 were not raised before the Controller of Estate Duty or before the Tribunal, and therefore, the Tribunal had no occasion to express any opinion or give any finding with reference to them. The other questions were held to be questions of fact. An application was, therefore, made on behalf of the petitioner to the High Court for a direction to the Income‑tax Appellate Tribunal that a reference under section 59‑A of the Estate Duty Act be made. Mr. Dingomal has produced a copy of that application which shows that the following questions were desired by the petitioner to be referred to the High Court (1) Whether the Tribunal had any jurisdiction to entertain the appeal. (2) Whether the provisions introduced in the Estate Duty Act in 1953, had retrospective effect. (3) Whether the determination of price of agricultural lands is valid in law and in accordance with the provisions of section 38 of the Estate Duty Act. (4) Whether the finding that annual value of the net crop of lands was Rs. 65,000 is valid in law. (5) Whether the valuation should be made in accordance with the certificate of valuation. Whether the deceased had 16 annas share or 12 annas share in the lands in question.

5. Writ Petition No. 101 of 1957, was filed by the petitioner when his application under section 59‑A, Estate Duty Act, teas pending in the High Court. In that petition the authority of the Controller to re‑open the valuation of the property and the jurisdiction of the Income‑tax Appellate Tribunal to bear the petitioner's appeal were questioned. That petition was dismissed summarily, as stated above.

6. The present writ petition has been instituted to challenge the validity of the notice dated the 12th of August 1954, by which payment of estate duty was demanded, on the ground that the Finance Act of 1956, had no application to the agricultural property. The previous writ petition and the application under section 59‑A of the Estate Duty Act have been differentiated in paragraph 14 of this writ petition, as follows " Neither in the aforesaid Writ Petition No. 101 of 1957, nor in E. D. Reference No. 49 of 1957, the points in respect of the recovery of the Estate Duty contrary to the provisions of (section) 57 of the Estate Duty arose or was raised. The subject‑matter of the aforesaid writ petition and E. D. Reference was the validity (of) the order of Controller of Estate Duty made under section 58‑A of the Act as amended in 1953, the contention being that amending Act, had no retros pective effect. The subject‑matter of this writ petition is, it is submitted, quite different and has no reference regarding the validity of the order of Controller of Estate Duty." The remedy sought by the petitioner in this writ petition is that the notice of demand should be quashed and that such amount of duty as was paid by the petitioner, under threat of action from the department, in excess of the amount that was legally recover able should be ordered to be refunded. Mr. Dingomal, for the petitioner, however, stated that he would press only for a writ in the nature of certiorari quashing the notice. The respondents to the present writ petition, viz. the Controller of Estate Duty and Pakistan have not submitted their replies to the petition. The facts stated in the petition are, therefore, uncontroverted and can be presumed to be correct. Pakistan was not represented before us ; Mr. A. Aziz, Advocate, appeared on behalf of the Controller of Estate Duty.

7. Learned counsel for respondent No. 1 did not question the proposition advanced by counsel for the petitioner that the Finance Act (I of 1956) was not applicable to agricultural land. He conceded that the decision in this respect of a Full Bench of this Court at Lahore, referred to above, could not be questioned by him before us. He opposed the writ petition on three grounds firstly, that the petitioner had attacked the notice of demand issued to recover the estate duty without questioning the order by which the duty was assessed. The notice was issued under section 58‑D of the Estate Duty Act and amounted merely to an administrative or ministerial act that was performed in pursuance of an order by which the duty was assessed. A petition for a writ in the nature of certiorari quashing such a notice did not lie. Secondly, the notice of demand is dated the 12th August 1954, and the present writ petition was filed on the 17th of September 1958, without any explanation or justification for the delay in invoking the writ jurisdiction of this Court. This delay, according to counsel, was fatal to the writ petition. Thirdly, all the remedies available to the petitioner under the Estate Duty Act were not exhausted before making this petition. The with drawal of the application that was made under section 59‑A of the Estate Duty Act did not amount to exhausting the remedy that was available to the petitioner. The petitioner was thus not entitled to seek a remedy from this Court in exercise of its writ jurisdiction.

8. The first two objections have force without doubt. Section 58‑A of the Estate Duty Act empowers the Controller to" determine the valuation on the basis of which duty is payable." Section 58‑D provides " When any estate duty, penalty, interest or any other sum chargeable has been determined in consequence of any order passed under or in pursuance of this Act, the Controller shall serve on the person accountable a notice of demand in the prescribed form specifying the sum so payable and the time within which and the place at which it is payable Provided that where an appeal Gas been filed before the Appellate Tribunal, the Controller may in his discretion postpone. Collection of so much of the estate duty as (is) in dispute." The notice of demand was thus served in pursuance of the order by which estate duty was determined. Under the above provision, such a notice must be issued. The petitioner has not alleged that the notice is in any respect inconsistent with the order. On the other hand, he has deliberately elected not to question the validity of the order of the Controller but merely to challenge the validity of the notice. Such notices cannot be said to be judicial or quasi‑judicial acts. They are administrative acts performed in pursuance of the main orders. Certiorari cannot be issued to quash such notices so long as the main orders stand, because " Certiorari lies only in respect of judicial, as distinguished From administrative acts " (Paragraph 251, p. 134, Vol. II, Halsbury's Laws of England, 3rd Edition). 1 earned counsel for the petitioner argued that the major part of the demand made by the notice was illegal because estate duty on agricultural land was a provincial and not a central subject. In view of the judgment of the Supreme Court in Pakistan v. Khondkar Ali Afzal and another (P L D 1960 S C (Pak.) 1), we can only consider the petition as it is before us and cannot examine the arguments advanced to show that the order of assessment, which is not sought to be quashed, J was partly illegal.

9. The petitioner was probably handicapped owing to blurred legal views on the basis of which he sought legal remedies. Difficulties were added because of major amendments made in the Estate Duty Act. The result was that he appealed to the Income tax Appellate Tribunal and then questioned the jurisdiction of the Tribunal to hear his appeal. He applied to the High Court for directions to the Tribunal to refer certain questions under section 59‑A of the Estate Duty Act and then withdrew that application. Mr. Dingomal, therefore, contended that there was explanation in these facts of the delay that has occurred in making the present petition. He supported the explanation by pointing out that the Finance Act (I of 1956), was for the first time held to be ineffective with respect to agricultural on 21st of May 1957, in the case of Lt. Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others, after the first writ petition was dismissed. The present writ petition, according to him, was thus filed in September 1958, without undue delay. We think that the mere fact that the petitioner or his legal advisers did not think earlier of raising the objection that was successfully raised in Lt. Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others is not a satisfactory explanation of about four years' delay in raising that objection. Moreover, there is no explanation at all of the delay of more than a year after the judgment in Lt. Col. Nawabzada Muhammad Amir Khan's case. D Certiorari is not a writ of right, but discretionary. We do no think that in view of the petitioner's unexplained and excessive laches we can properly exercise our discretion in his favour. Here we quote a relevant passage from page 202 of Extraordinary Legal Remedies by Ferris : " The writ will generally be refused in all cases where peti tioner fails to show that he has proceeded expeditiously after discovering that it was necessary to resort to it, and especially where great public inconvenience will result from its use. In all such cases of public detriment or inconvenience petitioner must act speedily, and any unreasonable delay will warrant refusal. In such cases the rule of laches is applied and enforced with particular strictness." Against this background of the law we reproduce an observation made by the Supreme Court in The Lahore Central Co‑operative Bank Ltd. v. Pir Saif Ullah Shah (P L D 1959 S C(Pak.) 210), which has a direct bearing on the exercise of discretion by the High Court in condoning delay " There is firstly the question of the delay in bringing the petition before the Court. It was filed some 22 months after the order of dismissal had been passed, which itself was made more than seven Months after the suspension of Pir Saifullah Shah. It is well recognised that mandamus will not be granted unless it is applied for with in a reasonable time after the right of prayer has accrued. In this case, the delay is not accounted for on any reasonable basis. The writ jurisdiction of the High Court was restored in October 1955, and there is no explanation for the last twelve months of the delay." The order of the High Court granting relief to the petitioner in that case was set aside for the above amongst other reasons.

10. The third objection of Mr. A. Aziz that the petitioner did not exhaust his legal remedies before filing this writ petition has not impressed us because an application under section 59‑A of the Estate Duty Act does not appear to be an equally efficacious remedy and because " there is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other legally effective remedy ; and provided the requisite ground exist, certiorari will issue although a right of appeal has been conferred by statute." (Paragraph 239 p. 130, Vol. II of Halsbury's Laws of England, 3rd Edition). It. In conclusion, the first two objections succeed and the petition is dismissed with costs. A. H. Petition dismissed.