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Suit No. 575 of 1954, decided on 11th July, 1955.

Government of India Act, 1935, S. 226‑Absolute bar against original jurisdiction of High Courts in matters concerning revenue, even if act complained of was under an illegal notifi cation‑Sea Customs Act (VIII of 1878), S. 19.

A certain quantity of gold belonging to the plaintiff was seized by the Customs authorities on the ground that the taking of gold out of the Federal Capital Was prohibited by Notification No. 51 of 27th December, 1950 under section 19 of the Sea Customs Act.

It was contended by the plaintiff that the said Notifica tion was illegal.

Held, that the bar provided by section 226 of the Govern ment of India Act 1935 was absolute, and the Chief Court could not go into the question whether the impugned notification was within the scope of section 19 of the Sea Customs Act or not.

Governor‑General in Council v. Raleigh Investment Company Limited. A I R 1944 F C 51 rel.

Spooner v. Juddow, 4 Moor's Ind. App. 253, Haji Moosa Haji Umar v. The Federation of Pakistan P L D 1955 Sind 361 ref.

Alcock Ashdown & Company Ltd. v. The Chief Revenue Authority A I R 1923 P C 138, The Secretary of State for India in Council v. Roy Jatindra Nath Chouwdhur1, and another A. I R 1924 P C 175, Secretary of State v. Mask & Co. A I R 1940 P C 105, and Raleigh Investment Company Ltd. v. Governor‑General in Council A I R (34) 1947 P C 78 distinguished.

Fazl‑ur‑Rehman, for Plaintiffs.

Nasiruddin, for Defendants.

‑These are two cases which were conso lidated as common questions of fact and law were involved. In suit No. 324 of 1953, five hundred and seventeen and a half tolas of gold belonging to the plaintiff was seized by the Customs authorities on the ground that taking of gold out of the Federal Capital was prohibited ; while in suit No. 575 of 1954, three hundred and seventy and 15/16 tolas of gold belonging to the plaintiff was seized by the Customs authorities on similar ground that the taking of gold out of the Federal Capital was prohibited by Notification No. 51 of 27th Decem ber, 1950 under section 19 of the Sea Customs Act.

The main contention of the plaintiffs in both the suits is that notification No 51 dated 27th December, 1950, under sec tion 19, of the Sea Customs was beyond the scope of the said section 19, and was, therefore, illegal and had no effect. It was urged by the plaintiffs that anything done under the said Notification No. 51 was without jurisdiction. The plaintiffs therefore, prayed for the return of the gold or the value thereof.

In these two cases, by consent of the parties, common issue, i.e., "whether the suit is barred by section 226 of Govern ment of India Act 1935" was tried as a preliminary issue.

It was not contented by Mr. Fazlur Rehman, the learned advocate for the plaintiffs in both the suits, that the confisca tion of the gold or recovery of fine in lieu thereof by the Customs authorities did not relate to the revenue of Pakistan. Mr. Fazlur Rehman for the plaintiffs, however, contended that the notification issued by the Government of Pakistan under section 19 of the Sea Customs Act was illegal, as no customs barrier could be established within the territories of Pakistan itself. In other words, his contention was that no customs barrier could be established for taking any article from one place in Pakistan to another place in Pakistan.

The other point on the contention raised by Mr. Fazlur Rehman was, whether the question of the notification being illegal could be considered when the said notification related to the revenue of the Government of Pakistan. In fairness to Mr. Fazlur Rehman I must say that he candidly conceded the force of the dictum laid down by their Lordships of the Privy Council in the case of Spooner v. Juddow that the jurisdiction of the Court could be barred if the act com plained of related to the revenue of Pakistan, but he con tended that it could be challenged as being illegal. In this connection, the observation of Lord Campbell at page 381 is noteworthy:

"We are, therefore, bound to differ from the Judge below who says, that the jurisdiction of his Court has not been taken away, when the act complained of is not warranted by the country, or by the Company's Regulations'. If it concerned the revenue, or was a matter concerning an act bona‑fide believed to be done according to the Regulations of the Governor and Council of Bombay, his jurisdiction was gone, although prima facie it appeared to be a trespass over his jurisdiction might be properly exercised".

Mr. Fazlur Rehman, however, contended that their Lordships of the Privy Council have deviated from the principle laid down by them in the case of Spooner v. Juddow in their pronouncements in later cases. Mr. Fazlur Rehman urged that the Privy Council in some of its pronouncements has held that, though the act may bar the jurisdiction of the Court, but if the alleged act was beyond the scope of the provisions of that act which barred the jurisdiction of the Court, the Court had jurisdiction to decide the matter. At the very outset, I may say that in none of these cases the Privy Council considered whether section 226 of the Government of India Act, 1935, or section 106 of the old Government of India Act would operate as a bar or not to the exercise of the original jurisdiction of the High Court in a suit where the act relating to the revenue was challenged to be illegal. I am of the opinion, relying on the observations made by Spens C. J., in the case of The Governor‑General in Council v. Raleigh Invest ment Company Limited. (A I R 1944 F C 51), that though the act imposing the revenue may be illegal, the same cannot remove the bar provided under section 226, Government of India Act, 1935, if it relates to the revenue. Spens C. J. observed:

"The learned judges say that where the law imposing the revenue is itself illegal, a dispute in relation to it cannot be said to concern the "revenue". This argument, if pursued to its logical limits, will prove to much. If even under a valid revenue law a person who is not liable to be assessed is sought to be assessed to revenue, that claim may well be described as an 'illegal' claim against him. Again there may be a dispute between a tax‑payer and the revenue authorities as to whether the tax payer has or has not paid what was due from him and if on investigation it should be found that he had paid what was claimed as still due, the claim as against him for further payment might well be described as illegal', If in such cases the Court should be called upon to decide whether the claim was well‑founded in law before applying the bar under section 226, the provision would be practically rendered nugatory".

Keeping these observations in view, which I respectfully accept and which have not so far been differed by any Court in this sub‑continent, I would hold that the bar provided by section 226 of the Government of India Act 1935 is absolute, and this Court cannot go into the question whether the impugned notification was within the scope of section 19 of the Sean Customs Act or not.

Mr. Fazlur Rehman, the learned advocate for the plaintiff relied on the case of Alcock Ashdown & Company Ltd. v. The Chief Revenue Authority (A I R 1923 P C 138) The Secretary of State for India in Council v. Roy Jatindra Nath Choudhury and another (A I R 1924 P C 175) Secretary of State v. Mask & Co. (AIR1940PC105) and Raleagh Investment Company Ltd. v. Governor‑General in Council (AIR1947PC78). 1 have perused these cases carefully, and I can state that in none of these cases the question of section 226, Government of India Act 1935, or its equivalent section in the old act, viz., section 106 was directly involved, and in none of these cases it has been held that,, if the impugned Act, though it concerned the revenue, but if it was prima facie beyond the jurisdiction of the authority that passed it, could be considered on the original side of the High Court. There are authorities to the contrary, and the leading case of the Federal Court is that of Governor‑General in Council v. Raleigh Investment Company Ltd. (A I R 1944 F C 51).

For the reasons given above, and also for the reasons that I have given in my judgment in the case of Haji Moosa Half Umar v. The Federation of Pakistan (P L D 1955 Sind 361) being suit No. 491 of 1953 and 18 other cases which were heard along with that case, I would hold that section 226 of the Government of India Act 1935 is an absolute bar, and suits, therefore, must be dismissed with costs.

A. H. Suits dismissed.

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