SARDAR MUHAMMAD IQBAL, J.-Briefly stated the facts of the case are that Mahmood Khan Goshwari, a resident of Dera Ghazi Khan died on the 3rd of February 1956 leaving behind five heirs who are petitioners in this petition. After his death, a notice was issued to them to submit accounts regarding property, mostly comprising of agricultural land, by the Controller of Estate Duty. The petitioners declared the value of the estate at Rs. 86,63.00 but the Controller not being satisfied with this valuation, started proceedings under section 58-A of the Estate Duty Act, 1950, for the purposes of determining the value of the property. On the 1st of May 1957 when the enquiry started, the petitioners' counsel tried to secure adjournment on the ground that in the absence of his client he was not in a position to produce evidence regarding determination of the value of the property.
His prayer was rejected. The counsel also raised a question about the jurisdiction of the Controller to hold enquiry but that also met the same fate. About a fortnight later, Mst. Kundan Bibi widow of the deceased, received an order of the Controller assessing the value of the estate at Rs.
2,13,237,00. The heirs of the deceased thereupon filed the present petition based on the following grounds:-
(a) That the estate consists mainly of agricultural land and the respondent had no jurisdiction as the amendment under which the enquiry was being held was ultra vires the provisions of the Constitution; and
(b) That respondent No. 1 has not conducted the proceedings judicially and has not allowed the petitioners to produce evidence before him.
2. The writ petition was heard on the 15th of March 1960 by a Division Bench of this Court consisting of the late Chief Justice M. R. Kayani and Mr. Justice S. A. Mahmood, and their Lordships accepted the same with costs. The order is short one and may be reproduced for facility of reference :- "Mr. Abdul Haq does not deny that if we follow the Full Bench case Lt.-Col. Mohd. Amin Khan v.
Controller of Estate Duty PLD 1957 Lah. 706, which lays down that estate duty is not leviable on agricultural land, the petition should be accepted. He only asks for adjournment of the case, as Government has appealed against the decision of the Full Bench. It is not known when that appeal will come up for hearing.
We accept this petition with costs, and quash the order of the Controller as being without jurisdiction."
The order was challenged in the Supreme Court through Civil Appeal No 18 of 1964 which was accepted on the ground that the agricultural property was not exempt from estate duty. The case, therefore, was remanded to the High Court with the remark: "The fact however, remains that the point raised in the writ petition regarding the alleged irregularity of the procedure in assessing the estate duty was not at all considered by the High Court. If the estate duty was leviable in respect of agricultural land, even then the assessee had a right to claim that the valuation was determined in accordance with law. In these circumstances, while recalling the writ issued by the High Court, we would remit, the case to that Court for disposal in accordance with law".
3. Learned counsel appearing on behalf of the respondents has raised a preliminary objection to the competency of the petition and contended that the Estate Duty Act, 1950 is: a self" contained statute and that since it provides adequate remedies which have not been exhausted before approaching this Court, the petition is not competent.
The respondents, if they wanted to raise this objection, should have done so at the time when the petition was in the first instance decided by Chief Justice Kayani and Mr. Justice S. A. Mahmood on the 15th of March 1960. It appears from the order that no such objection was raised. The petition was accepted on the ground that the duty was not leviable on the agricultural land. It is now well- established that if an order is without jurisdiction, it can be challenged by means of a writ petition even without exhausting the remedies provided by the statute itself. The order was challenged on the ground that jurisdiction did not vest in the Controller to pass the impugned order. It was entertained and accepted on that very ground. Only because the Supreme Court has set aside the judgment of the High Court, we do not feel inclined to dismiss at this state the writ petition on the ground of its being incompetent.
Moreover, if the respondents thought that such an objection was formidable against the petitioners they would raise this point before their Lordships of the Supreme Court in appeal which they preferred against the order of the High Court. They did not do so and that is the reason that their Lordships in their judgment while accepting the appeal did not advert to this question. They have directed the disposal of the petition on merits with reference to the points raised in the petition and also before them that the procedure in assessing the duty was not observed.
4. Mr. M. Ismail Bhatti, Advocate for the petitioners, contends that the Controller of Estate Duty in passing the impugned order on the 1st of May 1957 had not afforded him the reasonable opportunity to be heard inasmuch as he wanted to lead evidence to show the value of the property but he was not allowed so to do. Sh. Abdul Haq who appeared to represent the Controller took up the position that the Controller while acting under section 58-A of the Estate Duty Act, 1950, is not required to associate the accounting party in any inquiry and that he can determine the value without affording any opportunity to such a party to lead evidence and that at any rate the petitioners were given an opportunity but they did not avail of the same them--selves.
Section 58-A upon which much emphasis is laid by Sh. Abdul Haq provides: "If the Controller is of opinion that the person delivering the account whether before or after the commencement of the Estate Duty (Amendment) Act, 1953, has underestimated the value of the property in respect of which estate duty is payable (whether by placing too low a value on the property included in the account or by omitting to include therein property that ought to have been included), the Controller may, inquire into the matter in such manner and by such means as he thinks fit and, if still of opinion that the value of the property has been underestimated, may require such person to amend the valuation, and if the valuation is not thereupon amended to the satisfaction of the Controller, the Controller may determine the valuation on the basis of which estate duty is payable." If analysed, the section prescribes different steps which the Controller has to take before making a final order. He is, in the first instance, to consider whether or not account submitted by an accounting party under section 53(3) correctly values the property upon which the duty is to be paid. If he thinks that the property is underestimated or that the party has omitted to include any property which ought to have been included he may, inquire into the matter in any manner he may like. It is not necessary for him to associate the accounting party at this stage. The inquiry so held by him is for his personal satisfaction. He may in that inquiry find that the value of the property has been correctly estimated or that the information imparted to him that some property was omitted was not correct. He may then by accepting the value put by the accounting party determine the valuation for the payment of the estate duty. If, however, he thinks that the property has been underestimated he is under a statutory obligation to require the person to amend the valuation.
The accounting party may challenge the position taken up by the Controller and may refuse to amend the valuation. It is on the failure of the accounting party or its refusal in this behalf that the Controller may "determine the valuation on the basis of which estate duty is payable." The point to be examined is whether the determination by the Controller depends upon his subjective opinion or that he is to decide the matter objectively. If the determination had been dependent upon his personal opinion, the Legislature would not have used the word "determine" and in fact there would have been no point in making the provision, viz. "if the valuation is not thereupon amended to the satisfaction of the Controller, the Controller may determine the valuation on the basis of which estate duty is payable. The reason is that the Controller already before the issuance of the notice to the accounting party requir--ing him to amend the valuation has to form an opinion that the property is underestimated and he also while requiring him to amend informs him of the valuation which he puts on the property. In the notice so issued to the petitioners which is Annex. `A' to the writ petition, it is stated: " . . . . I require you to amend the valuation in accordance with attached sheet." The Controller has indicated the valuation of the property in the attached sheet. It is for the reason that section 58-A contem--plates that notice should be given to the accounting party to amend only when the Controller has formed an opinion. That being so, if the Legislature had intended that there should be no further inquiry by the Controller in the presence of the party, they would have provided that on the failure of the accounting party to amend the valuation the estate duty may be determined on the basis of the valuation already done by the Controller and indicated by him to the accounting party. The law, however, clearly provides that on the failure of the accounting party to amend the valuation as required, the Controller "may determine the valuation". The determination in the context, cannot be done unless an opportunity is afforded to the accounting party to satisfy the Controller about the correctness of his valuation.
5. Sh. Abdul Haq, learned counsel for the respondents, contended that the order passed by the Controller is not final and the accounting party has the right to prefer an appeal under section 59 to the Appellate Tribunal if he objects to the valuation made or the estate duty determined by the Controller or denies his liability to account for the duty payable in respect of any property. He primarily relied on subsection (4) of section 59 which provides: "Where the dispute pertains to the valuation of any property, the appellant may require the Appellate Tribunal to refer the question of disputed value to the valuers and the Tribunal shall thereupon refer the question to any one valuer or more valuers than one as it thinks fit. The precise contention is that if the accounting party does not feel satisfied with the determination of the Controller he can have the dispute referred to the valuer. We are not impressed by this contention. It is not in every case where the accounting party prefers an appeal that a valuer is appointed as a matter of course. The valuer can be appointed only if the appellant requires the Appellate Tribunal so to do. If an opportunity is given to an accounting party to lead evidence, the Controller may himself feel satisfied about the valuation placed by the party and accept it for the purposes of estate duty. It may as well happen that he may not accept the evidence and determine the valuation. The appellant, in such a case, if he thinks that there is sufficient evidence to convince the Appellate Tribunal about the valuation he placed, he may content himself with that and argue the case without asking the Tribunal to refer the disputed question of valuation to the valuer.
The contention of the learned counsel that the valuation done by the Controller is only tentative and not final is also not tenable. The accounting party if fails to file an appeal within the period of limitation, the order passed by the Controller is to operate against him and in so far as he is to pay the estate duty on that determination it is one which imposes a liability upon him.
It is now well-established that no order imposing a liability can be passed unless the person to be affected is afforded a reasonable opportunity to show cause against the same. We are also fortified in our opinion by subsection (3) of section 59 itself wherein it is specifically provided that the Tribunal should afford an opportunity to the accounting party to be heard before determining the valuation, subsection (3) lays down: "The Appellate Tribunal may, before disposing of an appeal, call for such particulars as it may require respecting the matters arising in the appeal or, where a reference has been made under sub--section (4), cause further enquiry to be made by the valuer or valuers, as the case may be, and after giving, the appellant, the Controller and, where necessary, the valuer or valuers, as the case may be, an opportunity of being heard may pass, subject to the provisions of subsections (4), (5), (6) and (7), such orders as it thinks fit and shall send a copy of such orders to the appellant and the Controller." The words "further enquiry" clearly imply that there has already taken place a proper enquiry, and that enquiry, in our opinion, can only be under section 58-A. If the Appellate Tribunal is required under subsection (3) of section 59 to hold further enquiry by giving the appellant an opportunity is to be afforded by the Controller when he is to determine the valuation on the basis of which estate duty is payable.
The learned counsel, however, contended that if the Legislature had any such intention, it would have expressly provided in section 58-A for a hearing' to the accounting party, and referred us to the Indian Estate Duty Act which has made it a part of law that the Controller should give an opportunity to the accounting party to be heard before he may determine the valuation. This, in our opinion, cannot make any difference. It is well-established by authority that principles of natural justice should be read in all statutes unless the same are expressly excluded. In Province of East Pakistan v. Nur Ahmad (PLD 1964 SC 451), it was held: "Although there is no specific provision in the Basic Democracies Order entitling the member proceeded against for removal to an opportunity to show cause, the member is entitled to such opportunity on principles of natural justice which are to be read in every enactment in the absence of a provision to the contrary. No person can be condemned without an opportunity to defend himself." The same view was taken in Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar and 13 others (PLD 1964 SC 461). In University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), it was observed: "Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal. Charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, `in order to act justly and to reach just ends by just means' the Courts insist that the person or authority should have adopted the above `elementary and essential principles' unless the same had been expressly excluded by the enactment empowering him to so act." "Law" does not mean only the statute law but also includes the principles which are laid down by the judicial pronouncements of the superior Courts.
In Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), Hamoodur Rehman, J. (now his Lordship the Chief Justice) observed that "law" in Pakistan is "not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law". The principle of natural justice has been authoritatively enunciated by the Supreme Court whose decision; to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding under Article 63 of the late Constitution of 1962 on all other Courts in Pakistan. It is a law declared. We would, therefore, read this principle in section 58-A and the Controller's order, if he finally determines the valuation under the said section without giving an opportunity to the accounting party to be heard, will be invalid.
6. It now falls for determination whether or not the petitioners were afforded an opportunity to be heard. The Controller required the petitioners by his order dated the 14th of March 1957 to amend the valuation and further stated that the case will be taken up on the 29th of March 1957 for necessary orders. The reply was submitted objecting to the valuation. The Controller on the 29th of March 1957 fixed the case at Lahore for the 25th of April 1957. The order on the file does not indicate that this was the\date fixed for evidence. Mr. M. Ismail Bhatti, learned counsel for the petitioners, was not avail--able and the case was, therefore, adjourned to the 1st of May 1957. Again, there is nothing forthcoming on the record to show that the date so fixed was for enquiry. Mr. Bhatti admittedly appeared before the Controller on the 1st of May and apprised him of the fact that the petitioners did not appear on the 1st of May because it was a holiday and that he be given an opportunity to produce evidence. The facts so stated in paragraph 6 of the petition have not been denied by the respondents. Rather it is stated in paragraph 6 of the reply: "But the case was not decided on 29-3-1957 to suit the convenience of the accounting person who was granted another opportunity to produce his evidence on 25-4-1957. It was then adjourned at the request of the accountable person to 1-5-1957, and further adjournment up to 4-5-1957 was also proposed to be allowed for the convenience of the accountable person, but the authorised representative of the accountable person expressed his inability to appear on that date. None of the petitioners attended on 25-4-1957. The 1st and the 4th of May 1957 were not public holidays so far as the Central Government and the answering respondent's depart--ment are concerned." As observed already, the file does not show that the 25th of April 1957 was fixed for evidence. The respondents did not controvert the position taken up by the petitioners that their counsel sought ansadjournment on the 1st of May 1957 to produce the evidence. The Controller agreed to adjourn the case to the 4th of May 1957. It means he had agreed to afford an opportunity to the petitioners to lead evidence on that date. In the circumstances, when the Con--troller had acceded to the request of the learned counsel to adjourn the case to enable him to lead evidence he should have given a reasonable longer date rather than the 4th of May. He by deciding the case on the 4th of May 1957 has virtually denied to the petitioners an opportunity to lead the evidence.
7. We would accept the petition, set aside the impugned order of the Controller and remand the case to him for deter--mination of the valuation in the presence of the petitioners by giving a reasonable opportunity to them to be heard. There will be no order as to costs.