Sonali Bank, Local Office, Dhaka Vs. Gazi Abdur Rashid and others, 39 DLR (AD) (1987) 207

Case No: Civil Appeal No. 1 of 1986

Judge: Shahabuddin Ahmed ,ATM Afzal ,

Court: Appellate Division ,,

Advocate: Miah Abdul Gafur,Mr. Abdul Wadud Bhuiyan,Mr. Mvi. Md. Wahidullah,Mr. Asrarul Hossain,Mr. SS Halder,,

Citation: 39 DLR (AD) (1987) 207

Case Year: 1987

Appellant: Sonali Bank, Local Office, Dhaka

Respondent: Gazi Abdur Rashid and others

Subject: Procedural Law,

Delivery Date: 1987-4-5

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chow­dhury J
Shahabuddin Ahmed J
M. H. Rahman J
A.T.M. Afzal J
 
Sonali Bank, Local Office, Dhaka
 ………………….Appellant
Vs.
Gazi Abdur Rashid & ors
…….……………Respondents
 
Judgment
April 5, 1987.
 
Court-fees Act (VII of 1870)
Section 35A
Section 35A remains operative and its provision is not inconsistent with Schedule I of 1981.
 
Cases Referred to-
Municipal Council, Palai vs. T. J. Joseph, AIR 1963 SC 1561; State of Punjab vs. Sukdev Sarup Gupta, AIR 1970 SC 1641; Em­peror v. Rayangouda Lingangouda Patil (AIR (31) 1944 Bombay 259); Messrs. Kohinoor Mercantile Corporation vs. Hazera Khatun and another (14 DLR 47); 14 DLR 47= PLD 1963 Dhaka 238; AIR 1955 All, 353; (1941) 2 K.B. 89.
 
Lawyers Involved:
Asrarul Hossain, Senior Advocate, instructed by Syed Sakhawat Ali, Advo­cate-on-Record-For the Appellant.
Miah Abdul Gafur, Advocate-on-Record-For the Respondent No. 1.
S.S. Halder, Senior Advocate, instructed by Ranesh Chandra Maitra, Advocate-on-Record—For the Respondent No. 2.
Md. Wahidullah, Advocate-on-Record-For the Respondent No. 3.
Ex-parte-For the Respondent Nos. 4—5.
A.W. Bhuiyan, Additional Attorney General with B Hossain, Assistant Attorney General-Amicus Curiae.
 
Civil Appeal No. 1 of 1986.
(From the judgment and order dated 28-3-85 passed by the High Court Division, Dhaka, in F.A.T. No. 86 of 1985.)
 
JUDGMENT
 
Badrul Haider Chowdhury J.
 
I have gone through the judgments written by my learned brothers Shahabuddin Ahmed and A. T. M. Afzal, JJ; I have nothing to add.
 
Shahabuddin Ahmed. J.
 
The question rai­sed in this appeal by special leave is whether section 35A of the Court Fees Act, 1870, has become inoperative, ineffective and infructuous in view of the substitution of Schedule I of 1981 for Schedule I of 1960 of the said Act. In other words, whether the High Court Division has correctly construed the statute holding that section 35A, which provides for higher amount of Court-fee than the maximum limit fixed in the Schedule, is very much in force and has not been affected by the substitution of the schedule.
 
2. Respondent No.1 filed a Money Suit (M.S. No. 186 of 1978) in the 3rd Court of Subordinate Judge, Dhaka, against the appe­llant and others claiming a little over Tk. 35,00,000/- as damage due to short delivery of commodities and got a decree against the appe­llant for Tk. 15,39,300/- (Fifteen lacs, thirty-nine thousand and three hundred). The appellant filed an appeal against the decree in the High Court Division on paying the maximum ad valorem court fee of Tk. 15, 000/-as specified in Schedule I of the Court-fees Act, briefly the Act. Under the Act, ad valorem court-fee is payable on the institution of a suit or filing of an appeal from such suit, and the rates of the fees have been specified in Schedule I of the Act. The rates increase as the value of the suit goes up; but a limit has been set beyond which the amount of the fee shall not go. According to the Schedule, the proper ad valorem court-fee is Tk. 15,000/- when the value of the suit is 11 lacs taka or above. That is, Tk. 15,000/-is the maximum limit of ad valorem court-fee payable under the Schedule even if the value of the suit exceeds Taka 11 lacs by any amount. The value of the appellant's appeal being Tk. 15 lacs, thirty-nine thousand and odd, he paid the maximum court-fee of Tk. 15 thousand. But the Taxing-officer of the High Court Divi­sion determined the Court-fee for this appeal at Tk-17,250/- by adding 15% of Tk. 15,000/-relying upon Section 35A which provides for exceeding this limit in cases involving higher valuation of the suit. The appellant paid the excess amount of Tk. 2,250/-with objection which was rejected by the Taxing-officer and ultimately by the High Court Division. Section 35A is quoted below:
 
"35A. Variation of rates.—(1) The ad valorem fees leviable on the institution of suits specified in Schedule I as amended before the promulgation of the Court Fees (Amendment) Ordinance, 1962, by any Central or Provincial Act shall be reduced by fifteen per centum where the value of the subject-matter exceeds two thousand rupees but does not exceed fif­teen thousand rupees; and shall be incre­ased by fifteen per centum where the va­lue of the subject-matter exceeds fifteen thousand rupees.”
 
3. Mr. Asrarul Hossain, learned Advocate for the appellant, contends that this provision of section 35A is no longer applicable as it has spent up its force as soon as Schedule I of 1960 to which section 35A related was repealed and replaced by a new Schedule, Schedule I of 1981. Learned Counsel contends that section 35A relates only to a particular Schedule, that is, Schedule I "as amended before the Promulgation of the Court Fees (Amendment) Ordinance, 1962,” Ordinance No. LII of 1963, and is not applica­ble to any other Schedule brought in the Act after repeal and replacement of the Schedule as specifically referred to in section 35A. The expression ''as amended before the promulga­tion of the Court Fees Act (Amendment) Ordi­nance, 1962," in its application to East Pakis­tan as it was then, means and refers to the Schedule which was brought in by E P. Ordi­nance No. XVIII of 1960 and as such, this Schedule has been referred to in this judgment as Schedule I of 1960.
 
4. It may be mentioned here that Schedu­les I and II of the Act have been substituted on several occasions by amendments of the Act both by the Central and Provincial Legislatures. The Act was enacted by the Central Legislature but it provided for amendment particularly in its schedules, by the then Provincial Legislatures in its application to the respective Provinces as the subject-matter fell within the concurrent list of subjects for legislation. Schedule I of the Act contains a table of rates for ad valorem court-fees payable on institution of suits. For the purpose of this appeal Schedules of 1960, 1969 and 1981 will be refer red to in this judgment. Schedule I of 1969 was brought in by East Pakistan Ordinance No. I of 1969 and the Schedule 1 of 1981 was brought in by (Bangladesh) Finance Act—Act XI of 1981. It may be noted here that though rates of fees as specified in these Schedules are variable, but in one respect they all are com­mon, that is, in all these Schedules the maximum ad valorem court-fee payable is Tk. 15, 000/- which shall remain unchanged even if the value of the subject-matter exceeds the prescribed limit, Tk. 11 lacs in the Schedules of 1960 and 1969 and Tk. 10 lacs in the Schedule of 1981. In the instant case, which is governed by the Schedule of 1981, the maximum ad valorem court-fee is Tk. 15. 000/-. But sec­tion 35A provides for variation of the ad valorem court-fee as specified in the Schedule I to the extent of 15% In the case of lower value of the suit, that is, between 2 thousand and 15 thousand takas, the ad valorem court-fee will be reduced, and in the case of the value of the suit exceeding Tk. 15 thousand, the ad valorem court-fee will be increased. But as the ad valorem court-fee in the Schedule can­not exceed Tk. 15, 000/-, the increase by 15% cannot also go beyond Tk. 2, 250/-. That is why by application of section 35A the proper court-fee has been raised to Tk. 17,250/- by the Taxing-officer whose decision has been up­held by the High Court Division. But the ques­tion is whether section 35A will at all apply to Schedule I of 1981 which came by replacing the Schedule 1 of 1960 which has been specifically referred to in the amending Statute "as amen­ded before the promulgation of the Amend­ment Ordinance of 1962, that is, Ordinance No. LII of 1962. There is no dispute that section 35A of the Act controls the Schedule; but contention of Mr. Asrarul Hossain is that it controls only Schedule I of I960 and no other Schedule which came thereafter. Mr. Asrarul Hossain has contended that a taxing statute should be construed very strictly and that in such a statute only the express 'words' will give its meaning leaving no scope for presumption or speculation about the legislative intent. Learned Counsel has placed reliance on Craies on Statute Law (7th Edition, page-113) which Includes, among other things, the famous observation of Rowlett, J. that ''in a taxing Act one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presu­mption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used".
 
5. As this appeal involves interpretation of taxing legislation, we requested the Attorney General to appear and assist us in arriving at a correct decision, and accordingly Mr. Abdul Wadud Bhuiyan, learned Additional Attorney General has appeared and made a lengthy submission. He has supported the view taken by the High Court Division upholding the Taxing-officer's decision. The learned Addit­ional Attorney General submits that there is no conflict between Schedule I of 1981 and section 35A inasmuch as the Schedule gives only the table of rates of ad valorem court-fees, whereas section 35A provides fur certain variation in the amount of ad valorem court-fee shown in the schedule. He has also poin­ted out that the provision for the maximum limit of the ad valorem court-fee at Tk. 15,000/ is common in all the Schedules, as referred to above, and as such the Schedule of 1981 is controlled by section 35A in the same way as the Schedule I of 1960. He has pointed out that when Schedule I of 1960 was replaced by Schedule I of 1981 section 35A was not deleted which means that the Legislature with full know­ledge of the existing laws on the subject repla­ced the Schedule of 1960 by the Schedule of 1981. As to the Schedule of 1969 it is same as the Schedule of 1960 excepting that the ari­thmetical figures in 'paisas' have been replaced by the figures in 'paisas'. As such it is quite correct to say that Schedule I of 1960 has been replaced by Schedule I of 1981. Lear­ned Additional Attorney General has also invoked section 8(1) of the General Clauses Act which provides that when any Act repeals and re-enacts any provisions or a previous Act, reference in any other Act or instrument to the repealed law must be construed as reference to the re-enacted law. Reference to Schedule I of 1960 should be therefore read as reference to Schedule 1 of 1981, he has argued.
 
6. The moot question is whether section 35A has been rendered "inoperative" by the substitution of the Schedule of 1981 for the Schedule of 1960. The Legislature while making this substitution did not repeal section 35A which, according to Mr. Asrarul Hossain, became useless and inoperative. Is it possible to hold that the Legislature was not aware of section 35A while amending the Schedules? According to rules of construction, it must be presumed that the Legislature is in full knowledge of all existing statutes on the subject when it makes or repeals any law. Section 35A is very much there in the statute and its provision is not inconsistent with Schedule I of 1981. As such it must be acted upon unless it is found that it has been repealed by necessary implication. Mr. Asrarul Hossain has not specifically invoked the principle of repeal by implication, but wren he contends that section 35A has been ren­dered inoperative by the subsequent Schedule it amounts to 'repeal by necessary implica­tion'. But it is a settled law that the court shall presume against repeal of statute by implication. An implied repeal will be held only when provision of the two statutes are so inconsistent that they cannot stand together.
 
7. In this connection, Mr. A. W. Bhuiyan has referred to a number of decisions to press his point that section 35A has not been re­pealed by necessary implication. One such decision is of the Indian Supreme Court in Municipal Council, Palai vs. T. J. Joseph, AIR 1963 SC 1561. It was held in that case:
 
“It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is equally well-settled that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject, the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. This pre­sumption will be rebutted if the pro-visions of the new Act are so inconsistent with the old once that the two cannot stand together. "
 
8. Mr. Asrarul Hossain has tried to limit the operation of section 35A only to the Schedule 1 of 1960 solely banking upon the expression "as amended before the promulga­tion of the Court-fees Ordinance, 1963". But if sec ion 35A is read along with all the relevant schedules starting from 1960 till 1981 it will be clear that the intention of the legislature was to super-impose the provision of section 35A upon the amounts of ad valorem court-fee as shown in the Schedule which may be amended from time to time. In section 3 5A, reference was made to the Schedule of I960 simply because that schedule was in force at the time of inserting this section, 35A, in the Act by Ordinance No. LII of 1962. The learned Judges of the High Court Division in construing section 35A took the view that by the expression "as amended before the promulgation of the Amendment Ordinance of 1962" the legislature actually meant its application to Schedule I “for all times". Learned Judges were also of the view that provision of section 8(1) of the General Clauses Act is applicable to this case. Learned Additional Attorney General has supported this view of the High Court Division and has contended that reference in section 35A to the repealed Schedule must be construed as reference to the re-enacted Schedule. Section 8(1) is quoted below:
 
"8. (1) Where this Act. or any Central Act or Regulation made after the com­mencement of this Act, repeals and re-enacts, 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. "
 
9. The learned Additional Attorney General argues that Schedule I of 1960 has been repealed by, and re-enacted as. Schedule I of 1981 and as such reference in section 35A to the repealed provision must be cons­trued as a reference to the re-enacted provision. In support of this contention he has cited a decision of the Indian Supreme Court in the case of State of Punjab vs. Sukdev Sarup Gupta, AIR 1970 SC 1641. In that case excise duty was leviable on medicinal or toilet preparations under the Punjab Excise Act, 914. Thereafter came in the East Punjab General Sales Tax Act, 1948 and it pro­vided for imposition of sales tax on all goods sold except goods on which excise duty is levied under the Punjab Excise Act, 1914. This exemption was provided in section 6 of the said Sales Tax Act After coming into force of the Indian Constitution in 1950 Excise duty fell into the Union list for taxation matters and the Indian Govern­ment enacted the Medicinal and Toilet Pre­parations (Excise Duty) Act, 1955 and this Act repealed any law of the State legisla­tures on the same field. This meant that the Punjab Excise Act. 1914, which was a State legislation, stood repealed. Respondent in that case was a manufacturer of medicinal and toilet preparations. He was assessed to Sales-tax under the East Punjab Sales-tax Act, 1948 in spite of the exemption provision in section 6 and it was contended on behalf of the Tax authorities that the exemption was no longer available to the respondent as the Punjab Excise Act. 1914 with reference to which the exemption had been provided was repealed by the Medicinal and Toilet Preparations Act of 1955. The respondent filed a writ petition challenging the levy of sales-tax. The High Court upheld his contention and held that reference in the Sales-tax Act, 1948 to the repealed provision of the Punjab Excise Act, 1914 must be construed as a reference to the relevant provision of the re-enacted law, name­ly, the Medicinal and Toilet Preparations (Excise Duty) Act in view of section 8(1) of the General Clauses Act.
 
10. Facts of that Indian case are found to be similar to the facts of the instant case and it is found that the High Court Division has cor­rectly construed that the reference to Schedule I or 1960 in section 35A must be cons­trued as reference to the substituted Schedule I of 1981. It is argued that Schedule I of 1960 has not been repealed and re-enacted, but has been substituted by Schedule I of 1981. But substitution of one law for another clearly amounts to repeal followed by re-enactment. As to the expression 'any other enactment" in section 8(1), it means any law other than the repealed law and the re-enacted law. Sec­tion 35A matches this expression and as such will run along with Schedule (I) as re-enacted unless any different provision is expressly made in the statute.
 
11. In the result, the appeal is dismissed without however any order as to costs.
 
A. T. M. Afzal J.
 
Facts of the case and the point at issue have been fully stated in the judgment of my learned brother Shahabuddin Ahmed, J. I agree with his decision but like to add a few words of my own answer to contentions raised.
 
13. Mr. Asrarul Hossain's chief argument seek­ing to limit the operation of section 35A only to "schedule 1 as amended before the promulgation of he Court Fees (amendment) Ordi­nance, 1962" is based on the submission that schedule I of 1981 cannot be read in place of the above as the legislature in its wisdom thought fit not to amend the section while sub­stituting schedule I of 1981 for schedule I of 1960 in cue Court Fees Act. He contends that if it was intended that section 35A should remain operative even after the substitution of schedule I in 1981 then it was the easiest thing for the Legislature to make corresponding amendment in section 35A replacing the clause as quoted above. That having not been done, he submits that there is no scope to read' schedule I of 1981 in section 35A. To the reply given by the learned Additional Attorney General that by reason of section 8(1) of the General Clauses Act the reference to schedule 1 in section 35A shall be construed as reference to schedule 1 of 1981, Mr. Hossain submit­ted that it would have been so if there was a case of repeal and re-enactment. According to Mr. Hossain, however, here is a case of amendment and substitution of schedule I in 1981 and not a case of repeal and re-enact­ment and as such section 8(1) of the General Clauses Act cannot be invoked in aid.
 
14. The contention of Mr. Hossain does not appear to be well-founded. By the Finance Act 1981 (Act No. XI of 1981) (section 2) schedule I of the Court Fees Act has been amended and substituted in place of the old schedule (of 1960) Legally it amounts to the same thing as saying that old schedule has been repealed and then reenacted with modification. It has been recognized by courts that frequently an Act purporting to be an amendment has the same qualitative effect as a repeal—the abrogation of an existing statutory provision— and have therefore applied the term implied re­peal and the rules of construction applicable to repeals to such amendments. In the case of Em­peror v. Rayangouda Lingangouda Patil (AIR (31) 1944 Bombay 259) a Division Bench was con­sidering substitution of a sub-rule made in the Defence of India Rules 1939 by an amending order in 1942 and it was observed that "Although nothing is said about repealing, the effect of substitution must, we think be the same as the effect of a repeal followed by re-enactment with modifi­cation within the meaning of section 8(1). We were referred to (1941) 2 K.B. 89 for the proposition that an amendment does not amount to a repeal. But we think (here is a clear distinction between an amendment which goes so far as to provide in terms for the substitution of one rule for another. In the latter case we think that it is mere juggl­ing with words to say that it does not amount to a repeal and re-enactment".
 
15. In the case of Messrs. Kohinoor Mercantile Corporation vs. Hazera Khatun and another (14 DLR 47) a Division Bench of the Dhaka High Court was considering a substitu­tion of a schedule (iv) in the Workmen's Compensation Act, 1923 by the Workmen's Compensation (Amendment) Act, 1957. It has been observed that a substitution of one legal provision by another does, in effect, repeal and re-enact an earlier law with or without modification.……a new law re-enacting the provisions of an earlier enactment with or without modification, nonetheless, repeals that enactment either expressly or by implica­tion enactment purporting to be an amendment has the same qualitative effect as a repeal.
 
16. Now section 8(1) of the General Clauses Act reads thus: "Where this Act, or any (Act of Parliament) or regulation made after the commencement of this Act, repeals and re-enacts, 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 reenacted".
 
17. In view of the law discussed above it is clear that by the Finance Act, 1981 schedule I of the Court Fees Act has been repealed and re-enacted with modification. Now in terms of section 8(1) reference ''in any other enactment" to the provision so repealed shall, unless a different intention appears be con­strued as reference to the provision so re-enacted. The question is whether section 35A occurring in the Court Fees Act itself (con­taining reference to schedule I) is included and contemplated within the meaning of "any other enactment". The answer is fairly simple, for, the General Clauses Act itself defines 'Enactment' as follows: "enactment" shall include a Regulation (as hereinafter defined) and shall also include any provision con­tained in any Act or in any such Regulation as aforesaid.
 
18. 'Enactment' includes individual legal provision including schedule (14 DLR 47= PLD 1963 Dhaka 238). A Full Bench of the Allahabad High Court (AIR 1955 All, 353) observed that "the words” any other enact­ment' in section 8 must, in our opinion, include the non-repealed part of the former enact­ment".
 
19. In the instant case Finance Act of 1981 or any other law does not speak of any different intention that reference to schedule I in section 35A shall not be construed as refe­rence to tae re-enacted schedule (of 1981). Thus there seems to be no escape from the proposition that the provisions of section 8(1) of the General Clauses Act apply fully in the present case. If so, the contention of Mr. Hossain objecting to the payment of enhanced court fee under section 35A must fall through.
 
20. Mr. Asrarul Hossain also submitted that even if it is possible to say that section 35A will be applicable to schedule I of 1981, the increased court fee by fifteen per centum cannot be realized when the maximum court fee of Tk. 15, 000/-is paid under the schedule.
 
He has drawn our attention to the relevant clause of the schedule which reads thus:
 
Proper Court fees
"where the amount value of the value of the subject matter exceeds of  Tk 2,00,000/”- "Tk. 7100/- plus 1% of the amount exceeding Tk 2, 00,000/ but the total fees shall not exceed Tk 15,000.00”
 
21. Mr. Hossain has emphasized the wor­ds "the total fees shall not exceed" occurring in the right band column and submitted that the legislative intent is very clear that a prohibition has been imposed against levy of Court fees beyond Tk. 15000/- in any case. It will be seen that schedule I as it stood (Sch­edule of 1960) at the introduction of sect on 35A in 1962 (by Ordinance LII of 1962) also provided that "the maximum fee leviable on a plaint or memorandum of appeal shall be fifteen thousand taka". The limit was thus there from before 1981. Mr. Hossain has, however, submitted that though the limit remains the same, there has been a significant change in the language and the present negative form has been introduced to emphasise the prohi­bition as to levy of court fee beyond Tk. 15,000/-It is difficult to agree with Mr. Hossain’s contention for two reasons. Firstly, the sche­dule of the Act cannot control a substantive part, namely, section 35A and, secondly, which is more important, the two provisions (section 35A and schedule I) become operative at two different stages and on two different subjects. When ad valorem fees are required to be paid for institution of a suit or filing of an appeal, the proper fees have to be calculated at the rate given under Schedule I with reference to the amount or value of the subject matter and there it is provided that the total fees shall not exceed Tk. 15, 000/ as indicated above. After determination of ad valorem fees under sche­dule I, provisions of section 35A come into play as the section says "the ad valorem fees leviable on the institution of suits specified in schedule I” shall be reduced/increased, etc. Therefore, section 35A does not come into conflict with the limitation provided in the schedule as to the maximum advalorem fees which may be determined under the schedule.
 
Ed.