1. AJMAL MIAN, C.J.--The petitioners, by this petition, have prayed for the following reliefs.
2. "It is, therefore, most humbly prayed that this Hon'ble Court may be pleased:-
(a) To direct the respondents Nos. 8 and 9 to grant no-objection clearance certificates as required by Section 3 of the Ordinance IV of' 1947 and/or Sections 16 and 17 of the Ordinance XV of 1949 which corresponds to Sections 20 and 21 of the Administration of Evacuee. Property Act XII, 1957, and or the rule 12 of Administration of Evacuee Property Rules 1950, to enable confirmation of the Exchange transaction of the properties vide Schedules A & B by the Custodian.
(b) To direct the respondent No.1 to confirm the Deed of Exchange executed dated 31-7-1948 between the petitioner and the Evacuee/Respondent No.4, registered on 1-4-1957, relating to Agricultural as well as Urban Properties vide schedules A and B in case the respondents 8 and 9 fail or refuse to issue No-Objection Clearance Certificate* required for transfer of the said Exchange Transaction.
(c) To grant any other necessary relief or reliefs which this Hon'ble Court may deem fit and proper in this regard".
3. The brief facts leading to the filing of the above petition are that late Haji Sira Ahmed father of petitioner I (hereinafter referred to as the deceased) who expired in 1949 and was` succeeded by petitioners 1 to 7 entered into an agreement of exchange of his properties situated in Ghaziabad with respondent 5 by their properties situated in Karachi and Thattta districts which comprised of Urban and Agricultural land. It seems that the deceased executed sale deed of his Ghaziabad properties in favour of respondent 4 on 20-3-19.48. After that respondent 4 applied under Section 3 of Ordinance IV of 1947 to the Income Tax Department for "No Objection" for the registration of the exchange deed. It seems that on 5-5-1955, the Additional Custodian created the charge of Rs.
4. 32,81,219/11 annas in respect of the outstanding amount of Income Tax against the respondenti4.Howeverthe requisite, certificate was issued on 31-7-1948. It is the case of the petitioners that on 31-7-1948, respondent 4 executed an Exchange Deed in respect of the properties which were given in exchange, but the same-- could not be registered for want of certificate. It further seems that on 6-1-1953 the petitioners made an application under section 19 of Ordinance of 1949 to the Additional Custodian for permission to register the Exchange Deed. After that on 30- 9-1948, the exchange-deed was presented before the Sub-Registrar, who on 21-12-1954 declined the registration. It appears that the certificate was granted on 31-1-1957 by the Additional Custodian. It further seems that the petitioners filed a suit No. 415/56 in the District Court against the refusal of the registration of the exchange-deed which suit was decreed and in pursuance whereof the Sub---Registrar on 1-4-1957 registered the exchange-deed which was followed by the mutation of the petitioners' names in the record of CDC Cantonment Board and village Form.
5. However, on 29-8-1959, respondent 1 i.e. The Custodian set aside the aforesaid permission granted by the Additional Custodian under section 19 on the ground that only 1/5th property of the deceased was treated as evacuee in India and not the entire property which was the subject matter of the exchange. Thereupon, the petitioners filed a review which was allowed by an order dated 21--12-1959 and the case was remanded to the Additional Custodian with the direction to decide the question of adequacy of consideration. After the remand order, the Additional Custodian submitted his findings on 11-1-1960, whereupon on 21-3-1960, the respondent 1 restored the permission dated 23-1-1957 which was granted by the Additional Custodian. Thereafter, on 4- 6-1960, the petitioners applied to respondent 1 under Section 20 of Act XII of 1957 for confirmation of the registration of the aforesaid exchange-deed. It appears that on 20-5-1960, respondent 8 i.e. Income Tax Commissioner N.C.A. Circle Karachi cancelled the No-Objection Certificate granted earlier. However, the Additional Custodian by his order dated 29-8-1960 confirmed the exchange- deed in respect of Urban Properties but declined the same in respect of the agricultural properties.
6. It further seems that the Custodian by his order dated 24-1-1960: set 4side the above order of the Additional Custodian dated 29-8-1960 against which the petitioners filed revision which was also dismissed by the Custodian by his order dated 25-1-1960. It appears that thereafter the petitioner filed a Writ Petition No. 638/62 against the above order of Custodian which was allowed and it was held that the cancellation by the Custodian vas not legal. Against which respondent 8 filed an appeal in the Supreme Court which was allowed by the Supreme Court by the judgment in the case of Commissioner of Income Tax N.C.A. Circle Karachi and another v. Haji Ashfaq Ahmed Khan and 18 others (PLD 1973 SC 406) and the judgment of the High Court was set-aside. It also seems that the petitioners had again applied- to respondent 8 on 6-10-1960 which application and the subsequent application filed by petitioners were not granted by respondent 8 and, therefore, the petitioners filed the present petition.
7. "3. No Registering Officer, Revenue Officer, Custodian or other Officer appointed to deal with property shall register any document, relating to property other than agricultural land, which is required to be registered under the provisions of clause (a), (b)(e) or (e) of subsection (1) of Section 17 of the Registration Act, 1908 unless it is certified by an Income Tax Officer, in respect of every person whose right, title or interest in the property is or will be transferred, assigned, limited or extinguished under the terms of the document, either that such person is not liable to taxation under the Income Tax Act, 1922, the Excess of Profits Tax Act, 1948 or the Business Profits Tax Act, 1947 or that he has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said Acts.
8. Provided that no such certification shall be necessary in respect of sale by a bank as mortgagee empowered to sell".
9. A perusal of the above quoted section indicates that the respondent 8 has to certify that the person in respect of whose property the document is to be registered or executed is not liable to taxation under the Income Tax Act 1922 etc. Admittedly the respondent 4 even today are liable to discharge the above income tax liability to the tune of Rs. 40,00,000 and, therefore, we cannot direct the respondent 8 to issue a certificate in spite of the above liability. If the petitioners would have paid the above amount, the position would have been different and in that event respondent 8 would have no justification to refuse the issuance of the certificate. We may also point out that the No-objection Certificate was cancelled as far back as on 20-5-1960, whereas the present petition was filed in 1979, and, therefore, apparently the petition suffers from laches. Even if we were to condone the above laches on account of the aforesaid litigation which culminated in the above judgment of the Supreme Court, the fact remains that even on merits, the petitioners have no case for the reasons stated herein above.
10. For the aforesaid reasons, the petition is dismissed, but there will be no order as to costs.
11. H.B.T./A-568/K