' Muhammad Amir appellant on 8-5-1976 filed a Writ Petition bearing No, 1212/1976 titled Muhammad Arnir v. The Federation of Pakistan etc., under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, The said writ petition was dismissed by a learned Single Judge of this Court on 30-9-1976. The petitioner-appellant filed an intra-Court appeal under section 3(2) of the Law Reforms Ordinance XII of 1972 as amended/ substituted by Law Reforms (Amendment) Act VIII of 1972 and other subsequent amending Ordinances/Acts. The appellant stamped his appeal with a court fee of Rs,
10. The office took up an objection that the appeal should be stamped with a court-fee of Rs, 200 under rule 10-A, Part HI of Chapter IV-J of the High Court Rules and Orders, Volume V. The appellant took exception to the office objection whereupon the case has been put up before me as a taxing Judge under section 5 of the Court Fees Act VII of 1870.
2. Mr. Muhammad Asaf, learned Advocate for the appellant referred to Article 8(C) of Schedule II of the Court Fees Act VIE of 1870, as amended by the Punjab Finance Act XIV of 1973, which reads as follows :- {{TABLE}} "Sr. Article No,
8. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree and is presented t-
(a) . . . .
(b)
(c) to High Court or other Controlling Executive or Revenue Authority."
He submitted that as the judgment of the learned Single Judge did not amount to a decree or order having the force of decree, therefore, according to the above Article it could be stamped with the court-fee of Rs,
10. In the alternative, he referred to Article 1 of Schedule I of the Court Fees Act as amended by the Punjab Finance Act XIV of 1973, which reads as follows "S. Article Proper Fee No,
1. Plaint, written statement, pleading a set-off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court except those mentioned in section 3. Seven and-a-half per centum on the amount or value of the subject-matter in dispute subject to a maximum of fifteen thousand rupees," {{TABLE}} and submitted that as the main writ petition in the High Court was stamped with a court-fee of Rs, 100, therefore, the appeal should also bear the same court-fee.
3. In my opinion, the points raised by the learned counsel for the appellant have no merit and the aforesaid provisions of law have no application to the facts and circumstances of the present case which is to be governed by special law on the subject as hereinafter highlighted. Under Article 101 of 1962 Constitution a High Court with the approval of the Governor of the Province could frame rules regarding the practice and procedure of the Court or for any other Court subordinate to it. In exercise of those powers the High Court framed rule 10-A in Part III, Chapter IV-J of the High Court Rules and Orders, Volume V, where it was laid down that "a court-fee of Rs, 200 shall be payable on each appeal filed under the Letters Patent against an order passed in exercise of writ jurisdiction the amendments shall take effect from Monday the 16th May, 1965. (added by C. S. No, 175, dated 13-4-1966)". That High Court could frame such a rule was laid down by their Lordships of the Supreme Court in Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan and 2 others (1) maintaining Ahmad Khan v. Member, I bard of Revenue, West Pakistan and another (2), which dealt with the present rule as well as the rule requiring a court-fee of Rs, 100 on writ petitions. No doubt earlier intra-Court appeals of the present kind used to be filed under clause (10) of the Letters Patent but that clause was repealed and enacted with modifications in the form of section 3 of the Law Reforms Ordinance XII of 1972 (as amended uptodate). In section 8 of the General Clauses Act X of 1897 which is marginally headed as "Construction of references to repealed enactments" it is written that "(1) where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts
(1) PLD 1968 9 0 171 (2) p L D 1967 Lah. 1030 ' with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall unless a different intention appears, be construed as references to the provision so re-enacted. (2) Where before the fifteenth day of August, 1947, any Act of the Parliament of the United Kingdom repealed and reenacted with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shale unless a different intention appears, be construed as references to the provisions so re-enacted". Applying that law it will mean that under rule 10-A ibid for the words "appeal filed under the Letters Patent against an order passed in exercise of writ jurisdiction" we will now have to read "each appeal filed under the Law Reforms Ordinance, 1972", because, it is that Ordinance which repeals the relevant provisions of the Letters Patent and re-enacts the same with some modifications. It was laid down in Chairman, Budge Budge Municipality v. Mongru Mia and others (1), National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. (2) and Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another (3) that when a reference was made to, for example, section 108 of the Government of India Act, 1915 in the Letters Patent, then after repeal and re-enactment of Government of India Act, 1913 by subsequent constitutional enactments references to old section 108 will mean references to corresponding newly enacted provision of subsequent constitutional enactments, As laid down in Wakefield and District Light Rys. Co. v. Wakefield Corporation (4) in England a section or a part of a section in an Act may be an enactment. Similarly in Rajrajeshwarashram v. Svarupanandtirtha (5) it was held that old court-fee will continue to be paid despite coming into force of a subsequent enactment, because, in the new enactment there appeared an intention to so indicate. In that case the old court-fee was less though in the instant case it would remain the same.
4. When confronted with this situation, learned counsel for the appellant submitted that Letters Patent was not an "enactment" and, therefore, section 8 of the General Clauses Act would not be applicable thereto. No text or4 case-law was quoted in support of this plea and the same cannot, therefore, be accepted. On the other band, the precedents reported in Chairman, Budge Budge Municipality v. Mongru Mia and others, National Sewing Thread Co. Ltd. v. James Chadwick & Bros.
Ltd. And Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another, are all cases pertaining to Letters Patent of various High Courts to which section 8 of the General Clauses Act was applied. These cases suggest that the canon of construction of statutes enunciated in section 38 of the Interpretation Act( (English) Interpretation Act 52 & 53 Viet., Ch. 63) 1889)-and reiterated with some modifications in section 8 of the General Clauses Act is one of general application where statutes or Acts have to be construed and that rule can well be applied in construing the Charters of the different High Courts. The General Clauses Act or the principles of construction enunciated in it do apply for construing these Charters. Learned counsel for the appellant then submitted that Letters Patent themselves may be an enactment but the rules framed thereunder were not enactments, and, therefore, any reference in rule 10-A to Letters Patent should not be considered as a reference to
(1) AIR 1953 Cal. 433 (2) AIR 1953 SC 357
(3) P L L 1966 SC 276 (4) (1906) 2 K B 140 (145-146)
(5) AIR 1927 Bonn 499 ' the Law Reforms Amendment Ordinance, and that section 8 of the General Clauses Act as such cannot be applied to the facts and circumstances of the present case. The contention has no merit. Firstly, because, rule 10-A WAS not framed under the Letters Patent but under Article 101 of 1962 Constitution and would independently continue despite repeal of clause (10) of the Letters Patent. Secondly, examining the argument as it is advanced, it will be noticed that in section 3(17) of the General Clauses Act it is stated that "'enactment' shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, or Bombay Code, and shall also include any c provision contained in any Act or in any such Regulation as aforesaid". This definition means that the word 'enactment' shall retain its ordinary dictionary meaning and shall also include various other items mentioned in the said definition. According to Aiyar's Law Lexicon (1940 Edition), page 388, Column H, "enactment is the making a thing into a law, the giving to it legal validity and authority. This may be the act of one or many, according as to soul ce of authority is personal or collective". In Director of Palk Prosecutions v. A. E. Lamb (1) it was held with reference to section 38(2) of the Interpretation Act that "this section itself draws a clear distinction between an Act of Parliament and an enactment. An "enactment" may mean something other than an Act of Parliament, but an Act means an Act of Parliament.......... ". Proceeding from that point of view, according to section 3(37b) of the General Clauses Act, "Pakistan Law" shall mean an Act, Ordinance, Regulation, rule, order or bye-law which-(a) before the establishment of the Federation of Pakistan had the force of law in British India or any part thereof ; or (b) after the establishment of the Federation of Pakistan but before the fourteenth day of October, 1955, had the force of law in Pakistan or any part thereof other than a Federated State ; or (c) after the thirteenth day of October 1955, has the force of law in Pakistan or any part thereof ; but does not include any Act of Parliament of the United Kingdom or any Order-in-Council, rule or other instrument made thereunder". Similarly Article 268(1) of 1973 Constitution lays down that "except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with necessary adaptations until altered, repealed or amended by the appropriate Legislature". In clause (7) of that Article it is stated that "in this Article, "existing Laws" means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra- territorial validity, immediately before the commencing day". In Bhairebencha Narayan Bhup v.
State of Assam (2) it was laid down that the word "Legislature" may be wed in different scenses in different Articles--;of the Constitution)---and may be in different senses in different places in the same Article and its meaning has to be ascertained keeping in view the subject or the context, and making a note that, sometimes it may be used in a larger sense, namely, comprising all the units that were concerned in the entire legislative process. This will show that rule 10-A was law and, from that point of view, an enactment, and as such, any reference in it to Letters Patent (or to be more precise clause (10) of the Letters Patent) shall have to be construed as reference to D the Act (namely section 3 of the Law Reforms Ordinance, 1972 as amended up-to-date) which took the place of that clause. Such an adaptation will have to be made even otherwise under Article 268(1) of 1973 Constitution or under earlier corresponding provisions of the Interim Constitution wherever relevant, because in the very context of rule 10-A it dealt with
(1) (1941) 2 All. E R 499 (508) (2) AIR 1956 SC 503 ' appeals from orders passed in "writ jurisdiction", which at the time rule 10-A was framed was Article 98 of t962 Constitution. That Article now stands succeeded by Article 199 of 1973 Constitution (in fact section 3 of the Law Reforms Ordinance does make specific reference of this Article). If for "writ jurisdiction" (under Article 98 of 1962 Constitution) we are to read "writ jurisdiction" under Article 199 of 1973 Constitution a fortiori we shall have to read "appeals under Law Reforms Ordinance, 1972" (as amended) in place of "appeals under Letters Patent" so long as the appeals are against orders under writ jurisdiction. Lastly if with the omission/ repeal of clause (10) of Letters Patent which was the only provision providing for appeals under Letters Patent the words "each appeal filed under the Letters Patent" are to be dropped from rule 10-A on the ground that with the repeal of an Act, a rule referable to that Act also drops to that extent then proceeding on that assumption but without conceding it as elaborated earlier it will read "a court-fee of Rs, 200 shall be payable on each appeal against an order passed in exercise of writ jurisdiction". This will show that looked at from whatever angle, the conclusion is unescapable that under rule 10-A a court-fee of Rs, 200 shall have to be paid on each appeal against orders in writ jurisdiction even now.
5. The tax reference is answered and decided accordingly.