Basil Scott, C.J.
1. This is a reference under Section 8 of the Aden Act II of 1864 for the decision by this Court of the following questions:
1. Whether the lower Court (i.e., of the Assistant Resident) did not act irregularly and illegally in declining to hear the plaintiffs' case as a whole and raising a certain preliminary issue and deciding the same without taking any evidence as to the merits of the case.
2. Whether the decision of the lower Court on the said issue was not erroneous. And
3. Whether the lower Court was not wrong in dismissing the plaintiffs' suit.
2. The nature of the plaintiffs' suit and the circumstances under which the preliminary issue, the subject of the reference, was raised are stated in the judgment of the Assistant Resident as follows:
The plaintiffs, in 1909, obtained a lease from Government of certain lands in the Sheikh Othman District of Aden for the purpose of constructing salt works thereon and the manufacture of salt therein. The plaintiffs pay a rent of Rs. 7,000 per annum for this land, plus a royalty of eight annas per ton on all salt exported by them. The defendants, the Executive Committee of the Aden Settlement, constitute the Municipal authority of the Aden Settlement, within the area of which is comprised the land upon which the plaintiffs' salt works are situated.
'As stated in the plaint, the Political Resident at Aden, in exercise of powers conferred upon him by the Aden Settlement Regulation (No. VII of 1900), had published two Notifications, dated 26th March 1909, levying certain taxes and laying down rules for the assessment and collection thereof. Included among the taxes so levied were a House and Property Tax and a General Sanitary Tax, both taxes to be assessed on the rateable value of the property taxed.
'By these Notifications, the defendants were charged with the duty of assessing and collecting the said taxes in accordance with the rules therein embodied.
'The defendants, acting on the powers thus conferred on them, fixed the rateable value of the aforesaid leasehold lands of the plaintiffs at Its. 7,000, that being the amount payable by the plaintiffs as annual rent for the lands. This was done in the year 1909, when the salt works had only just begun to be constructed and no salt had as yet been produced. In the year 1911, when production had commenced, the defendants adopted a new mode of assessment, and fixed the rateable value of the property at one-half the value of the salt exported by plaintiffs during the year, less ten per cent.
'The plaintiffs state that they protested against this new mode of assessment, but their protest was overruled by defendants, who continued in the following years to assess the taxes on the new basis in spite of protests from plaintiffs on each occasion. The plaintiffs urge that this new method of assessment is wrong in principle and oppressive, as well as being illegal and unauthorised, and they ask for a declaration of the Court to that effect. They ask further for a declaration that the correct method of assessing the taxes is to make the fixed rental Rs. 7,000 or at most such sum plus the royalty payable by plaintiffs on salt exported as the rateable value of the lands and to assess the taxes on such rateable value. They ask finally for a decree for the refund of the excess sums over the amount legally payable recovered by defendants during the three years 1911-1914.
'Now the first point to be noted is that in their plaint the plaintiffs make no mention whatever of the fact that in three successive years they made three appeals to the Court of the Resident, in the manner provided in the rules, against the defendants' decisions of which they complain, and that all these appeals were rejected by the Court. This is a fact to which great importance is, not unnaturally, attached by the defendants, who maintain that these decisions in appeal are final and that this Court cannot interfere. In the circumstances it has been necessary to frame a preliminary issue: Whether this Court has jurisdiction to interfere with the assessment fixed by the defendants, and confirmed by the Appellate Authority? If the decision on this issue be found in the negative, this Court can have no option but to dismiss the suit.
3. The plaintiffs inter alia contended that the rules providing for appeals against over-assessment were not passed by the Legislative Council and, therefore, have not for the purposes of the present case the force of law.
4. The Aden Settlement Regulation, 1900, made under the Government of India Act, 1870 (33 Vic, C. 3), provides for the establishment of an Executive Committee for the Municipal Government of Aden to be appointed and controlled by the Resident which shall have such authority, discharge such functions and exercise such powers within the area to which the Regulation extends as the Resident may by any rules under the Regulation direct. By Clause 13 the Resident is authorised, subject to the previous sanction of the Local Government, to make rules to provide for certain specified matters which include 'the assessment and collection of any toll, cess, tax or other impost imposed under the Regulation.'
5. By Clause 11 the power to impose such tolls, cesses, taxes and other imposts as are necessary for the purposes of the Regulation is vested in the Resident, who may fix the taxes and modes of levying or recovering the same.
6. On the 26th March 1909, the Resident imposed inter alia a House and Property Tax and General Sanitary Tax, and on the same day issued rules purporting to be for the assessment and collection of the House and Property Tax or General Sanitary Tax.
7. They provided inter alia for the preparation of an assessment list containing 'the annual letting value or other valuation on which the property is assessed', for complaints to the Executive Committee where any property was for the first time being entered in the list or in which the entered rateable value has been increased, and for appeals against any rateable value to the Judge of the Resident's Court.
8. Rule 12 provides that after appeals, if any, are decided and the results noted in the assessment list, all rateable values so entered in the list shall be final subject to such action as may be necessary under Rules 17 and 18 to amend the list from time to time.
9. It may be observed that the rules contain no rules for assessment but only directions for the entries to be made in the assessment book after the property has been assessed.
10. This point can be made clear by reference to the City of Bombay Municipal Act (Bombay Act III of 18c8), which is expressly referred to in the Notification of Taxes of the 29th March 1909.
11. Sections 146 to 153 of the Bombay Act provide for the persons to be made liable. These sections are adopted by reference in the Notification of Taxes but Sections 154 and 155, which provide for the mode of assessment, have no counterpart in either the rules or the Notification of the Resident.
12. The provision of Rule 12 regarding the finality of the rateable value is apparently taken from the first and the last lines of Section 219 (1) of the Bombay Act, but there is no counterpart to the Bombay provision that the decision of the Judge in an appeal against such value shall be final.
13. It is, however, assumed by the Assistant Resident's judgment that the provision that the rateable value shall be final, is equivalent to a provision that the decision of the Judge in the rating appeal shall be final.
14. If this was the intention it is curious that the Bombay Government, whose previous sanction to the rules was necessary, should have sanctioned the omission of the provision that the decision of the Judge in a rating appeal shall be final. It is curious for the reason that the corresponding provision in Section 219 of the Bombay Municipal Act was found to require validation by an Act of the Governor-General, viz., Act XII of 1888.
15. It is just as probable that the provision that the decision should be final was omitted in order not to prevent suits for refund of disputed rates in the Court of the Resident, in which suits a case might be stated under the Aden Act for the decision of the High Court as they can be stated by the rating appeal Court in Bombay under the Act XII of 1888, or because there was a doubt as to the legality of limiting by rules the ordinary jurisdiction of the Resident's Court,
16. We will, however, dispose of the reference now before us on the assumption that the Rule 12 is intended to make the decision of the Judge of the Resident's Court in a rating appeal final. On this assumption we think the rule is ultra vires.
17. It is well established that a distinct unequivocal enactment is required for the purpose of either adding to or taking away the jurisdiction of a Court. The Resident's Court had already jurisdiction under the Aden Act of 1864 to hear and determine all cases of whatever value. The Rule 12 read as it has been by the Assistant Resident amounts, to use the words of Lord Watson in King v. Henderson (1898) A.C. 720 : 67 L.J.P.C. 134 : 79 L.T. 37 : 14 T.L.R. 490 : 47 W.R. 157, to ' the creation of a jurisdiction which the Legislature withheld.' It would, if valid, force the aggrieved rate-payer to accept a final decision by a procedure in which appeal by way of case stated to this Court would not be open. No one disputes that such a result may be obtained by legislative enactment by a competent authority, but authority to achieve such a result by the subordinate legislation of rules cannot be implied, for the presumption is the other way.
18. We are, therefore of opinion that there is no valid objection to the trial on its merits of the suit instituted by the plaintiffs.
19. We answer the questions put as follows:
(1) In the affirmative.
(2) The decision of the lower Court was erroneous.
(3) The lower Court was wrong in dismissing the plaintiffs' suit.
20. Costs consequent on the reference to be costs in the suit.