P L D 1973 Supreme Court 134 (PLP)

Thereafter the Custodian presumably at the instance of the appellants created a charge of Rs. 32,21,219 on the immovable properties of the respondent No. 4 other than the properties they had undertaken to give to Haji Siraj Ahmad for re‑imbursement of taxes owing from them consequent upon which the Inspecting Assistant Commissioner, Karachi, issued the requisite No‑Objection Certificate for registration of the sale deed in respect of five im movable properties situated In the city of Karachi. The appel lants then moved the Additional Custodian for approval of the transfer under section 19 of the Administration of Evacuee Property (Amendment) Ordinance XX of 1956 which provided that:-- `Where any document required to be registered under the Registration Act, 1908 (XVI of 1908), or any application for mutation of names purports to create or transfer any right or interest in any property in contravention of the provision of section 18 of this Ordinance, no registering officer shall register the same, and no revenue officer shall sanction any mutation of names in respect thereof, unless the party presenting the docu ment or making the application produces a certificate from the Custodian that the property is not evacuee property or that the transaction has been confirmed or that the Custodian has sanctioned the transaction." The authority vested in the Custodian under this section was controlled by the Central Government by notifications and in structions issued from time to time. One of these notifications permitted exchange of evacuee immovable properties with the properties abandoned by refugees in India on the condition that such properties were treated by the Custodian In India as evacuee. Acting under this notification the Additional Custodian on 23‑1‑1957 accepted the application made by the appellants under section 19 and accorded sanction to the sale deed dated 31‑7‑1948 treating it as a component part of the agreement of exchange dated 19‑2‑1948. In pursuance to It the sale deed was registered on 1‑4‑1957. The matter, however, did not rest here. On 20‑8‑1959 the Custodian revised the order of the Additional Custodian dated 23‑1‑1957 and set aside the approval accorded to the sale deed dated 31‑7‑1948 on the ground that it was not shown that the properties given by Haji Siraj Ahmad to the respondent No. 4 in exchange were treated in India as evacuee property. The appel lants thereupon got hold of the notifications from the office of the Custodian, Delhi, treating the properties given by Haji Siraj Ahmad as evacuee on which the Custodian reviewed his earlier order and remanded the case to the Additional Custodian for holding an inquiry as regards the value of the properties exchang ed between Haji Siraj Ahmad and the respondent No.

4. The Additional Custodian on recording evidence satisfied himself that the properties given in exchange were equal in value and submit ted a report to the Custodian who on 23‑1‑1960 affirmed the order of the Additional Custodian dated 23‑1‑1957 granting approval to the transfer in favour of Haji Siraj Ahmad. Thereafter the appellants moved the Additional Custodian under section 20 of the Administration of Evacuee Property Act XII of 1957 for confirmation of the transfer of the aforesaid pro perties by the respondent No. 4 in favour of Haji Siraj Ahmad. In the meantime a new development had taken place. The Income‑tax Officer, Karachi, who had been nominated as the prescribed authority under section 3 of the Transfer of Property (Pakistan) Ordinance IV of 1947 cancelled the No‑Objection Cer tificate issued by the Inspecting Assistant Commissioner of income‑tax on 14‑12‑1955 for registration of the sale deed dated 31‑7‑1948 and this fact was brought to the notice of the Additional Custodian before whom the application for confirma tion was pending. The Additional Custodian, however, held the cancellation of the certificate to be illegal and on 19‑8‑1960 con firmed the sale of the urban immovable properties, but refused to confirm the sale of agricultural land as it was not covered by the No‑Objection Certificate dated 14‑12‑1955. Aggrieved by the refusal to confirm transfer of agricultural land the appellants filed a revision before the Custodian who on the view that the No -Objection Certificate was properly cancelled by the Income‑tax officer au a Motu issued notice to the appellants as to why the confirmation of the sale of urban immovable properties in their favour by the respondent No. 4 be not set aside. In the result the confirmation of the transfer of the urban immovable properties was by order dated 24‑11‑1960 also set aside and the revision petition against the order of the Additional Custodian regarding agricultural land dismissed by a separate order dated 25‑11‑1960. The aforesaid orders of the Custodian and the order of the Income‑tax Officer cancelling the No‑Objection Certificate were then brought by the appellants before the High Court in writ jurisdiction for quashment as without lawful authority on the grounds that: (I) a No‑Objection Certificate for confirmation of sale of agricultural land was not necessary under section 20 of Act XII of 1957; (II) the transfer having been approved finally by the Custodian on 23‑1‑1960 under section 19 further confirma tion was not required under section 20; and (iii) there was no power in the Income‑tax Officer to revoke the order of the Inspecting Assistant Commissioner dated 14‑12‑1955. In the matter of cancellation of the No‑Objection Certificate the Custodian had relied on section 21 of the General Clauses Act, but the High Court found that the power under that section could b9 exercised by the Inspecting Assistant Commissioner alone who had passed the original order dated 14‑12‑1955. The order of cancellation passed by the Income‑tax Officer was accordingly held to be without lawful authority. The learned Judges further found that the sale deed having been already registered on 1‑4‑1957 the order of cancellation did not affect it as the transaction had become past and closed. On behalf of the Custodian it was urged that the No‑Objection Certificate must be in existence at the time of confirmation of the transfer as envisaged in the notification issued by the Central Government on 17‑3‑1950 under section 45 of the Administration of Evacuee Property Ordinance XV of 1949. The notification reproduced In the High Court JUDGMENT in effect provided that transfers In respect of which a certificate was obtained under section 3 of the Transfer of Property (Pakistan) Ordinance, 1947, between the 10th of December 1947, and the 20th day of October 1948, may be confirmed by the Custodian without the production of a No‑Objection Certificate from the prescribed Income‑tax authority. It was maintained that transfers which fell outside the specified period required a No‑Objection Certificate notwithstanding that such a certificate was earlier produced before the Custodian in seeking his approval under section

19. The contention did not find favour as the learned Judges considered that the use of the words "was not" or "is not" covered by a certificate from the prescribed authority in sub‑clause (2) of subsection (3) of section 20 of Act XII of 1957 postulated that if a transfer was covered by a certificate in proceedings under section 19, it was not necessary to produce it again along with the application under section

20. It was observed In this behalf that:‑ "The Court is concerned with the intention of the Legislature that is deducible from the language of section 20(3)(a)(ii) of the Act. We have already observed, that there is a distinction between "was not" or "is not covered" by a certificate from the prescribed income‑tax authorities and that it would be sufficient compliance of law if the transfer was covered with the requisite certificate. The Legislature has purposely used g the words "is not covered" to safeguard the interest of the Government where the transfer related to agricultural pro perty. In the case of agricultural property it was not necessary for the purposes of registration to produce a certificate under section 3 of Ordinance IV of 1947. It was, therefore, necessary to make provision for the production of a certificate at the time of confirmation of the transaction. Some people had left Pakistan for India without making provision for their income‑tax dues, and the only property from which the dues could be realised was agricultural property. A provision had to be made for the realisation of the revenue.

15. In these circumstances, we are clearly of the view that where a transaction is once covered by an Income‑tax Certificate it is not necessary to again produce the certificate before the Custodian." The order of the Custodian setting aside confirmation of the sale of immovable properties was in this view held to be without lawful authority and set aside, but the writ petition in respect of the order refusing to confirm the sale of agricultural lands was dismissed as it was not covered by a No‑Objection Certificate. Leave to appeal was granted to consider whether in the absence of a provision in section 3 of the Transfer of Property (Pakistan) Ordinance IV of 1947 for grant of a No‑Objection Certificate in respect of transfer of agricultural land it was necessary to produce such a certificate for confirmation under section 20 of Act XII of 1957. At the hearing Mr. A. K. Brohi, learned counsel for the appellants, also raised the question whether in view of the approval accorded by the Custodian under section 19 of Act XII of 1957 to the transfer in question it was at all necessary to obtain further confirmation under section

20. As the Custodian and the Settlement authorities did not choose to appeal from the order of the High Court it does not fall to express any considered opinion on the view expressed by the learned Judges that "where a transaction is once covered by an Income‑tax Certificate it is not necessary to again produce the certificate before the Custodian". It must, however, be said that the enunciation would not apply to cases in which it is found that the No‑Objection Certificate has been for good and sufficient reason cancelled by the competent authority. In support of the first contention Mr. A. K. Brohi relied on the provisions of section 3 of the Transfer of Property (Pakistan) Ordinance IV of 1947, which exclude agricultural land from transfer of properties in respect of which "no registering officer, revenue officer, Custodian or other officer appointed to deal with property shall register any document relating to property which is required to be registered under clause (a), (b), (c) or (e) of subsection (1) of section 17 of the Registration Act, 1908". It is correct to say that a certificate under section 3 is not required for registration of a sale deed of agricultural land, but it does not follow that such a certificate was not necessary for confirmation under section 20 of the Administration of Evacuee Property Act XII of 1957. It becomes clear by referring to rule 12(3) of the Administration of Evacuee Property Rules, 1950, which provides that the application for confirmation of transfer of an evacuee property shall be accompanied by a certificate as in terms of section 3 of the Transfer of Property (Pakistan) Ordinance, IV of 1947 from the Inspecting Assistant Commissioner of Income‑tax of the ares in which the property is situate or in the absence of a certificate an affidavit declaring why such certificate is not attached The certificate has therefore to be in terms of section 3, namely, that the person whose right, title or interest in the property is or will be transferred, assigned, limited or extinguished under the terms of the document is not liable to taxation under the Income‑tax Act, 1922, the Excess Profits Act, 1940, or the Business Profits Act. 1947, or that he has cither paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said Acts. However, if section 20 or rule 12(3) required that a No Objection Certificate under section 3 of the Transfer of Property (Pakistan)' Ordinance, IV of 1947 shall be produced then the exception made in that section in respect of agricultural land would have been meaningful. It is further evident that the require nerd in section 20(3) (a) (if) for production of a No Objection Certificate by the prescribed Income‑tax authority is confined t; evacuee property and op; rates independently of the provisions of section 3 of the Transfer of Property (Pakistan) Ordi nance, 1947, which apply to all kinds of properties, The words "in terms of" in rule 12(3) mast, therefore, be given the meaning that the certificate shall be in the form laid down fn section 3 as provided for in the Administration of Evacuee Property Laws and not in pursuance to the authority vested by Ordinance or in the Inspecting Assistant Commissioner of Income‑tax, etc. We accordingly concur with the learned Judges of the High Court that the Additional Custodian was justified in refusing to confirm the sale of agricultural land comprised ink the sale deed dated 31‑7‑1948 in favour of Haji Siraj Ahmad for, non‑production of the requisite No‑Objection Certificate. In support of the second contention Mr. A. K. Brohi relied on the decision in Mrs. R. B. AM v. The Custodian of Evacuee Property (P L D 1962 Lah. 84) delivered by me as a Member of the High‑Court Bench. In construing sections 19 and 20 of Act XII of 1957 it was observed as follows :‑ "

15. Plain reading of the two sections shows that while section 19 prohibits future alienations of evacuee property, section 20 covers past alienations of such property. It is clear from the fact that the prohibition is to take effect from the date of the declaration to be made after the coming into force of the Act. Any sale which has taken place before the issue of notification is, therefore, the concern of section 20 which corresponds to section 16 of Ordinance, XV of 1949. In the two earlier West Punjab Ordinances, and Act VII of 1948 there were somewhat similar provisions regarding alienations of evacuee property on and after the 1st of March 1947, but it Is not necessary to refer to them because our purpose is only to show that until the enactment of Ordinance XV of 1949 there was no provision of law prohibiting future alienation of property, whether evacuee or non‑evacuee. Section 15 of ordinance XV of 1949 was apparently enacted to meet a new and distinct situation. The provision that no alienation of evacuee property made after the Ist of March 1947, will take effect unless confirmed by the Custodian, Evacuee Property was primarily enacted to safeguard the interest of evacuees, whereas section 15 was calculated to secure the interest of large number of refugees who had in the meantime migrated to West Pakistan from all over India. By this time, it had been realized that there was no question of evacuees coming back to Pakistan to settle here permanently or of Muslim refugees going back to their hearths and houses in India. It, therefore, became necessary to prohibit all future alienations of evacuee pro perty to settle refugees on it. To achieve this end, section 15 of Ordinance XV of 1949 was first brought on the statute book on the 15th October 1949. This historical background will show that sections 15 and 16 of Ordinance XV of 1949 were not enacted together to supplement the provisions of each other in the sense that they were to apply simultaneously to an alienation of evacuee property. As seen above, provisions corresponding to section 16 were incorporated in the evacuee laws from the very beginning while section 15 came into the field much later and in altered circumstances. It was admitted before us by the Departmental representative that notifications issued from time to time by the Central Government under section 15 of Ordinance XV of 1949 and section 19 of Act XII of 1957 have been confined to evacuee property only. Thus the subject‑matter of sections 19 and 20 of Act XII of 1957 being identical, the principle of a special provision of law prevailing over a general provision, to which appeal was made by the learned counsel or the respondents, is inapplicable to this case. Apart from it, we see no sense in providing that an alienation of evacuee property should be blessed twice by the Custodian.

16. It is also worth noticing that while prohibiting future alienations of evacuee property the Legislature expressly conferred on the Custodian power to permit a transfer by giving previous approval in writing in his discretion. Was it intended that a sale completed in accordance with the terms of the permission accorded by the Custodian will not take effect unless it was again confirmed by him? It has to be borne in mind that under the "previous approval in writing" of the Custodian parties have changed their positions. One has parted with his property and the other with his money. To Invest the Custodian with the power to with hold his consent after according permission and to render the sale nugatory, which has been brought in conformity with his directions, will to say the least, offend against all accepted notions of civilized laws. Unless there is a compulsion contained in express and unambiguous words used in a statute, Courts will hesitate to ascribe to its author an intention or an object which will result in manifest injustice and such would be the result if we accepted the interpretation of sec tions 19 and 20 of Act XII of 1957 by the learned Custodian of Evacuee Property in the two impugned orders." In short it was held by me that if sale of immovable property by an evacuee on or after 31st March 1947, was approved by the Custodian under section 15 of Ordinance XV of 1949 it was unnecessary to apply again for confirmation under section

16. On re‑examining the scheme of Act XII of 1957 and the provisions of sections 19 and 20 of Act XII of 1957 which correspond to sections 15 and 16 of Ordinance XV of 1949 I have been persuaded to change my view about the requirement of a No‑Objection Certificate for confirmation of a transfer by the Custodian. Section 19 has been reproduced in the earlier part of this JUDGMENT. It is to be noticed that a certificate under this section was necessary for registration of the deed of transfer or attestation of the mutation of transfer and was to be refused inter alia on the ground that the transaction had not been confirmed by the Custodian. Want of confirmation under section 20 being one of the grounds on which sanction under section 19 was to be refused it becomes evident that the two sections apply independently and not to the exclusion of each other. The scope and object of confirmation under sections 19 and 20 is also quite different. Confirmation was to be refused if the transfer was prohibited under any law for the time being in force or was not or is not covered by a certificate from the prescribed Income‑tax authority to the effect that no objection exists to the transfer or the transfer was not or has not been entered into in good faith or for adequate consideration or ought for any other reason not to be confirmed. The Custodian B could therefore while confirming a transaction impose conditions calculated to safeguard the interest of refugees settled on the property involved in the transaction, but all these considerations were foreign to the grant of sanction under section 19 which dealt with transfer of evacuee property prohibited by Act XII of 1957 generally. The scope of inquiry under the two sections was, as seen above, also different. While exemption under section 19, such as, in regard to exchanges between evacuee properties was granted under the directions of the Central Government in general terms, under section 20 each transfer was to be scrutinized and confirmed or rejected on its own facts. It was accordingly not a case of blessing a transaction twice by the Custodian as observed in Mrs. R. B. Alvi v. T Custodian of Evacuee Property, but sanctioning a transaction at two different stages with different objects in view. I, therefore, feel no hesitation in holding that the construction placed on sec tions 19 and 20 of Act XII of 1957 in the case of Mrs. R. B. Alvi v. The Custodian of Evacuee Property was not correct. The second contention raised in support of the appeal thus also fails. It follows that the High Court was justified in refusing to call in question the order of the Custodian in respect of the transfer of agricultural lands by the respondent No. 4 is favour of Haji Siraj Ahmad. The appeal is accordingly dismissed, but in the circumstances of the case there shall be no order as to costs. S. A. RAHMAN, J.‑I agree. HAMOODUR RAHMAN, J. ‑I agree. K. B. A. Appeal dismissed.