1987 PLP 786 (CLC)

4. Mr. Shaikh A. Sattar, learned Additional Advocate‑General, could not controvert the contention raised on behalf of the petitioners that neither under the Registration Act, 1908, nor under the law and rules relating to capital gains tax, the owner was required to produce a clearance or no‑objection certificate from the Excise and Taxation Officer relating to capital gains tax or that without production of such certificate the Registrar could refuse registration. However, the learned Additional Advocate‑General submitted that there was an order of the Martial Law Administrator, Zone "C", which required that capital gains tax, wherever leviable under the Rules, was to be recovered from the assessees before the registration of the sale deeds. For that, neither any Martial Law order was produced nor any notification was placed before this Court showing that the then Martial Law Administrator, Zone "C" had passed any such order but alongwith an application (Misc. No.2774 of 1986) presented in Court on 13‑11‑1986, the learned Additional Advocate General placed on record copies of a Summary dated 18‑2‑1979 presented to the then Martial Law Administrator, Zone "C", in March, 1979, and Memo., dated 15‑3‑1979 of the Government of Sind addressed to all Commissioners of the Division in Sind. The Memo Sated 15‑3‑1979 reads as follows:‑ With a view to check evasion of Capital Gains Tax, the Martial Law Administrator Zone 'C' has been pleased to order that Capital Gains Tax wherever leviable under the Rules shall be recovered from the assessees before the registration of the sale‑deed. (2) All Registration authorities may be directed to ensure strict compliance of these instructions." In the copy of the Summary submitted to the Martial Law Administrator, Zone "C" it was mentioned that under the relevant law relating to capital gains tax and the Rules framed thereunder, capital gains tax was payable by the seller of an immovable property within a period of 15 days from the date of the execution of sale‑deed and this resulted in substantial evasion of capital gains tax because a large number of sellers of immovable properties became untraceable after the execution of the sale deeds. It was further stated in the summary that suggestions had been made to the Punjab Government for amending the relevant Rules but the Punjab Government in preference to amending the existing Rules, considered it advisable to issue executive instructions for realization of the capital gains tax at the time of registration of the sale‑deeds. It was, therefore, suggested that executive instructions may be issued on the subject to all the Commissioners of the Divisions in Sind directing them to ensure that capital gains tax should be realized before the registration of the sale deeds. It was further submitted in the Summary that issuance of executive instructions appeared to be the only practical solution for the following reasons:‑ The Federal Government had at one time introduced the system of income‑tax clearance certificate but it was withdrawn because it was interpreted as an unwarranted restriction on the right of a citizen to register sale deeds and other documents. It will, therefore, be practically impossible to persuade the Federal Government to agree to a similar arrangement for recovery of Capital Gains Tax." In the end it was requested in the summary that the Martial Law Administrator may accord his approval for issuance of executive instructions on the lines proposed in the summary. This Summary was presented to the Martial Law Administrator, Zone "C", who made the following endorsement:‑ "Alright." Pursuant to this, the aforesaid memo. dated 15‑3‑1979 was issued. Mr. Shaikh A. Sattar, learned Additional Advocate‑General relying on Article 270‑A of the Constitution, submitted that the aforesaid order of the Martial Law Administrator, Zone "C", amended the relevant law on the subject or in any case it was binding on all registering authorities in Sind and as such in the instant case the registering authority rightly did not register the document as clearance or no‑objection certificate from the concerned Excise and Taxation Officer about payment of capital gains tax had not been produced by respondents Nos. 6, 7 and 8 (the sellers).

5. Sub‑Article (1) of Article 270‑A of the Constitution is not relevant to the controversy as the executive instructions issued by the Government to the Commissioners of the Divisions in Sind pursuant to the endorsement "Alright" of the then Martial Law Administrator Zone "C", cannot be termed as a Martial Law Regulation or a Martial Law Order or a law made between the prescribed dates. However, reliance had been placed specifically by the learned Additional Advocate‑General on sub‑Article (2) of Article 270‑A of the Constitution, which reads as follows: ‑ "(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date on which this Article comes into force, in exercise of the powers derived from any Proclamation, President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye‑laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise or purported exercise of powers as aforesaid; shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever." We had asked the learned Additional Advocate‑General to point out or refer to any Proclamation, President's Order, Martial Law Regulation, Martial Law Order, enactment, notification, rule, order or bye‑law, under which the aforesaid executive instructions were issued but the learned Additional Advocate‑General could not refer specifically to any such instrument. His argument was that as the Martial Law Administrator, Zone "C" had given his concurrence to the suggestions made in the Summary about the issuance of executive instructions such instructions assumed the status of a valid and legal instrument not challengeable in any forum and. override the statutory law.

6. In the instant case, a Summary had been submitted to the Martial Law Administrator, Zone "C" for issuance of executive instructions and his approval was sought, which apparently was given. The summary, copy whereof has been placed on record by the Government, shows that according to the Government also the relevant applicable laws did not require production of a clearance or no‑objection certificate regarding payment of capital gain‑tax as a condition precedent for registration of a conveyance deed it is also clear from the summary that there was; neither any intention to amend or change the law on the subject nor any suggestion made to amend or change the law but a proposal was made for issuance of executive instructions only. By giving his concurrence to the proposal made in the aforesaid summary, what in effect had been approved by the then Martial Law Administrator, Zone "C" was that executive instructions may be issued. No order was passed nor even any intention expressed by the Martial Law Administrator, Zone "C" that such executive instructions would change or modify the law already applicable in respect of registration of conveyance deeds. Approval had not been given by the Martial Law Administrator, Zone "C" for issuance of any instructions to replace, amend or modify the law already applicable at the time relating to registration of conveyance deeds. The proposal in the summary was for issuance of executive instructions, concurrence of the Martial Law Administrator, Zone "C" was for issuance of executive instructions and resultantly instructions, which were issued, were executive instructions and not instructions amending or replacing the law on the subject. As observed earlier, this is apparent from the summary itself, copy whereof has been placed on record by the Government. And in case of conflict between executive instructions and statutory provisions, latter of course prevail. 7. . In our view, as the aforesaid executive instructions have not been shown to have been issued in exercise of the powers derived from any Proclamation, President's Order, Martial Law Regulation, Martial Law Order, enactment, notification, rule, order or bye‑law, the protection granted by sub‑Article (2) of Article 270‑A of the Constitution is not available for seeking immunity for such instructions. Even otherwise, as observed earlier, it is apparent that the aforesaid executive instructions were not issued to replace, change or amend the existing law at the time relating to registration of conveyance deeds. Under the then applicable law, a registering authority could not refuse registration of a conveyance deed on the ground that first a clearance or no‑objection certificate regarding payment of capital gains tax be produced and the aforesaid executive instructions did not change this law.

8. In our view, therefore, the Registering Authority could not refuse registration of the conveyance deed dated 5‑9‑1983 presented to it for registration. Respondents Nos.l and 2 are, therefore, directed to register the conveyance deed dated 5‑9‑1983 presented before respondent No. l for registration on 5‑9‑1983 without production of a clearance or no‑objection certificate from the Excise and Taxation Officer relating to payment of capital gains tax provided there is no other legal hurdle in the registration of the said conveyance deed. Constitutional Petition No. D‑526 of 1985 stands disposed of accordingly with no order as to costs. A.A. / A‑4/ K Petition accepted