1. SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from the judgment and order of the then High Court of West Pakistan, Karachi Seat allowing the Writ Petition of respondents Nos. 1 to 7, and setting aside the order of respondent No. 8, the Custodian. Evacuee Property (Pakistan), Karachi, dated the 24th November 1960, and restoring that of the Additional Custodian, dated the 29th August 1960.
2. The appeal has been heard ex parte against respondent No. 10, the Chief Settlement and Rehabilitation Commissioner. The addresses of the evacuees, respondent No. 11, Messrs Murlimal Sant Ram & Co. And others, were not known and, therefore, they could not be served with notices.
3. Their properties having become evacuee have been vested in respondent No. 8, the Custodian, Evacuee Property.
4. It appears that on the 19th February 1948, Haji Siraj Ahmad deceased, father and predecessor-in- interest of respondents Nos. 1 to 7 entered into an agreement of exchange of his properties situated at Ghaziabad, District Meerut, India, with respondent No. 11 in respect of their properties situated at Karachi and in District Thatta, Pakistan. In pursuance of this agreement Haji Siraj Ahmad executed a deed of sale in favour of respondent No. 11 in consideration of a sum of Rs. 8 lacs, and had the deed registered in India on the 20th March 1948.
5. On the 19th April 1948, respondent No. 11 applied to the inspecting Assistant Commissioner of Income-tax, Karachi, for a certificate under section 3 of the Transfer of Property Ordinance (IV of 1917), hereinafter called the 1947-Ordinance. However, before the certificate was issued respondent No. 11 executed a sale deed by way of exchange on the 31st July 1948, in respect of their aforesaid properties in favour of Haji Siraj Ahmad, and presented it for registration before the Sub-Registrar, Karachi, on the 30th September 1948. The Sub-Registrar refused registration as the deed was not accompanied by the Income-tax Clearance Certificate under section 3 of the 1947-Ordinance or a certificate under section 17 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), hereinafter called the 1949--Ordinance.
6. On the 5th December 1955, the Deputy Custodian informed the Income-tax Officer dealing with the case that charges amounting to Rs. 32,21,219 had been created against the pro--perties of respondent No. 11 in favour of the Income-tax Department. These charges were, however, not created on the properties in dispute.
7. On the 14th December 1955, the Inspecting Assistant Commissioner of income-tax, 'A' Range, Karachi, purported to issue five certificates under section 16(3)(a)(ii) of the 1949-Ordinance in respect of five different properties. These certificates stated that there was no objection to the confirmation of sale or transfer of the specified properties in the name of Haji Ashfaq Ahmad and others for the specified consideration.
8. On the 23rd January 1957, on the application of respondents Nos. 1 to 7 under section 19 of the Pakistan (Administration of Evacuee Property) (Second) Ordinance (XX of 1956) for permission to register the aforesaid deed, the Additional Custodian directed issue of a certificate for registration of the deed, and in pursuance of this order, a certificate was issued on the 31 January 1957. This Ordinance had come into force on the 17tb November 1956. The Sub-Registrar then registered the deed on the 1st April 1957. The registration prima facie appears to have been made beyond the time mentioned in section 23 of the Registration Act, 1908.
9. The Pakistan (Administration of Evacuee Property) Act (XII of 1957), hereinafter called the 1957-Act, came into force on the 15th March 1957. On the 29th August 1959, the Custodian, to exercise of his powers of revision under section 43 of the 1957-Act, set aside the said order of the Additional Custodian dated the 21st January 1957. Respondents Nos. 1 to 7 applied for review of tads order, and the Custodian by his order dated the 21st December 1959, modified his previous order, and remanded the case to the Additional Custodian to determine whether the transaction of exchange was for adequate con--sideration, and then to submit his report to the Custodian for final orders.
10. As directed, the Additional Custodian submitted his report, and the Custodian by his order dated the 21st March 1960, upheld the order of the Additional Custodian dated the 23rd January 1957 No confirmation as required under section 20 of the 1957-pct was either applied for or granted uptill this time.
11. On the 6th April 160, respondents Nos. 1 to 7 applied under section 20 of the 1957-.1ct for confirmation of the aforesaid deed of sale by way of exchange of their urban properties situated at Ghaziabad, India, with the urban properties at Karachi and agricultural properties at Thatta of respondent No. 11.
12. On the 20th May 1960, the Income-tax Officer withdrew/ cancelled the certificates issued by the Inspecting Assistant Com--missioner of Income-tie dated the 14th December 1955. This cancellation was, subsequently, approved by the Income-tax Commissioner.
13. On the 29th August 1960, the Additional Custodian, upon the aforesaid application dated the 6th April 1960, disregarded the cancellation of he said certificates by the Income-tax Authorities, and confirmed the transaction relating to urban properties only as covered by the said sale deed with effect from the 31st July 1948.But refused confirmation regarding the agricultural properties. The Additional Custodian based the decision on the reasoning that it was not open to the Income tax Authorities to cancel an income-tax certificate once it had been issued and that in any case the requirements of section 20 of the 1957-Act were satisfied as long as an income-tax clearancest certificate was in existence at the time of registration of the sale deed irrespective of its subsequent cancellation.
14. On the 24th November 1960, the Custodian acting suo motu under section 43(4) of the 1957-Act set aside the aforesaid order of the Additional Custodian dated the 29th August 1960, whereby the latter had confirmed the transaction relating to the urban properties. The Additional Custodian's order regarding the agricultural properties was left un-interfered with. Prior to the passing of the order of the Custodian dated the 24th November 1960, respondents Nos. 1 to 7 had applied to appellant No. 1, the Commissioner of Income-tax, and the Central Board of Revenue successively for the restoration of the certificates cancelled by the Income-tax Officer on the 20th May 1960, but no order had been passed on the application.
15. On the 31st July 1962, respondents Nos. 1 to 7 filed Writ Petition No. 540 of 1962 against the Commissioner of Income-tax (appellant No. 1 herein), the Income-tax Officer, and respondent No. 11 challenging the validity of the cancellation of the aforesaid income-tax certificates. This petition was, however, dismissed by the High Court on the 28th August 1962. The Court held that the Income-tax Authorities were competent to cancel the said certificates granted earlier.
16. PLD 1962 Lah. 84), and the case of Muhammad Saddiq v. Government of Pakistan (PLD 1962 Pesh.
17. 149), the Custodian, however, observed that it was open to respondents Nos. 1 to 7 to approach the High Court once again. In the two decisions under report it was observed that once a transaction had been approved by the Custodian no confirmation by him was required. These decisions evidently failed to notice the difference between the requirements and purposes of sections 20 and 21 of the 1957-Act (corresponding to sections 16 and 17 of the 1949-Ordinance and sections 18 and 19 of Ordinance XX of 1956).
18. It may be mentioned here that prior to the filing of Writ Petition No. 540 of 1962 respondents Nos. 1 to 7 had filed Writ Petition No. 416 of 1962 on the 11th June 1962. While Writ Petition No. 416 of 1962 was still pending, the said respondents filed vet another similar writ petition being Writ Petition No. 638 of 1962 on the 21st May 1963. On the 18th April 1963, Writ Petition No. 416 of 1962 was withdrawn.
19. Writ Petition No. 638 of 1962, which is the subject-matter of the present appeal before us, was allowed by a Division Bench of the then High Court of West Pakistan, Karachi Seat, on the 25th March 1965. The order of the Custodian of Evacuee Property dated the 24th November 1960, in so far as it refused to confirm the aforesaid transaction in relation to the urban property was set aside and the order of the Additional Custodian dated the 29th August 1960, was confirmed. The order of the Custodian dated the 25th November 1960, refusing to confirm the transaction relating to the agricultural property was, however, not interfered with.
20. Leave was granted by this Court to consider the following four questions on condition that the costs of the appeal would, in any event, be borne by the appellants irrespective of the result of the appeal:-
(1) Whether successive writ petitions can be maintained on the same facts;
(2) Whether an Income-tax Officer has the jurisdiction to cancel a previous Income-tax Clearance Certificate issued by an Inspecting Assistant Commissioner of Income-tax having juris--diction to do so after the amendment in the law made by the Finance Ordinance of 1959;
(3) If he has such jurisdiction, can he do so even after the deed has been registered and the transaction closed and concluded; and
(4) Whether the Custodian Authorities had the jurisdiction to refuse to confirm a transfer which was duly covered by an Income-tax Clearance Certificate and/or to insist upon the production of a fresh Income-tax Clearance Certificate and thus avoid a formal requirement which had been duly complied with.
21. Before we proceed to consider these questions it is profitable to mention certain facts.
22. The certificates that were issued by the Inspecting Assistant Commissioner of Income-tax on the 14th December 1955, were, in fact, no certificates as contemplated under section 3 of the 1947- Ordinance. Section 3 of the 1947-Ordinance provides as follows:- "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), (c) 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 Profits Tax Act, 1940 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."
23. It may be pointed out hero that "Income-tax Officer" was substituted for "Inspecting Assistant Commissioner of Income-- tax" by the Finance Ordinance (XV of 1959), with effect from the 1st April 1959. Since this amendment, therefore, the Income-tax Officer has been the competent officer to issue the certificate. Circulars (1948) as contained in the Taxation (SpecialNumber) 1971 give the form of the certificate as under :-- "FORM B GOVERNMENT OF PAKISTAN INCOME-TAXDEPARTMENT Office of the Inspecting Assistant Commissioner of Income-- tax . . . . . Province of . . . . .
(a) is not liable to taxation,
(b) has paid or has made satisfactory provision for the payment of all existing or anticipated liabilities, under the Income-tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940), or the Business Profits Tax Act, 1947 (XXI of 1947).
24. This certificate is valid up to the 31st March 19 . . .
25. Seal of Office Dated------------------..
26. Inspecting Assistant Commissioner of Income-tax.
27. Omit (a) or (b) as required."
28. The certificates actually issued purported to have been under section 16(3)(a)(ii) of the 1949- Ordinance, and they stated as follows:- "There is no objection to the confirmation of sale of transfer of the under mentioned property in the name of person specified below for a consideration of Rs. 1,50,000 (Rupees one lac fifty thousand only).
29. VENDOR (SELLER) Mr. Dungarmal Bachumal Fatnani p/o M/S. Murlimal Santram & Co. Of Karachi.
30. VENDEE (PURCHASER) Mr. Haji Ashfaq Ahmad s/o Haji Simi Ahmad Khan and others s/o Munshi Ibadullah Khan of Karachi.
31. Description and location of property Plot of land with buildings thereon bearing No. 24/25 O. T.
8. "
32. Other four certificates were issued on similar lines.
33. The aforesaid certificates did not contain the particulars as required under section 3 of the 1947- Ordinance and were, therefore, no certificates there under. There is, thus, force in the A contention raised on behalf of the appellants, that, in fact, no certificate was ever issued as required under section 3 of the 1947-- Ordinance.
34. Sections 16 and 17 of the 1949-Ordinance which correspond to sections 20 and 21 of the 1957-Act and sections 18 and 19 of Ordinance XX of 1956 are as follows:- "16. Restriction on transfer by evacuees.-(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee, or by or on behalf of a person who has or may hereafter become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian.
(2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party.
(3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and-
(a) shall reject the application if the creation or transfer-
(i) was or is prohibited under any law for the time being in force, on
(ii) was not or is not covered by a certificate from the prescribed income-tax authority to the effect that no objection existed or exists to such creation or transfer;
(b) may reject the application if he is of opinion that the creation or transfer-
(i) was not or has not been entered into in good faith or for adequate consideration, or
(ii) ought for any other reason not to be confirmed.
(4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either uncon--ditionally or subject to such terms and conditions as he thinks fit to impose.
17. Registration of documents and mutation of names.-(1) Where any document required to be registered under the Registration Act, 1908 or any application for mutation of names purports to create or transfer any right or interest in any property In contravention of the provisions of section 16 or section 23-A 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 document 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 property is not property belonging to an intending evacuee or that the Custodian has sanctioned the transaction.
(2) If any question arises whether any document presented for registration or any application made for mutation of names purports as aforesaid, the registering officer or the revenue officer, as the case may be, shall direct the party concerned to apply to the Custodian for a certificate under subsection (1) and shall not register the document or grant the application without such certificate."
35. Rule 12 of the Administration of Evacuee Property Rules, 1950, framed under section 46 of the 1949- Ordinance, and published on the 25th August 1950, prescribes as follows:- "12. Procedure for confirmation under section 16.-(1) An application for confirmation under subsection (2) of section 16 shall contain full particulars of the property, the name of the transferor and his present address, if known, the nature of the transaction sought to be confirmed, and the consideration paid or deferred together with the date or dates on which paid.
(2) The application shall be presented within sixty days of the date of publication of these rules or the date of execution of the instrument effecting the transaction sought to be confirmed, whichever be later, and any period during which the completion of such transaction is prohibited by or under any law for the time being in force in the area in which the property is situate shall be excluded.
(3) The application shall be accompanied by a certificate in terms of section 3 of the Transfer of Property (Pakistan) Ordinance, 1947 from the Inspecting Assistant Commissioner of Income-tax of the area to which the property is situate or such other officer as may be duly appointed in this behalf, or in the absence of such certificate an affidavit declaring why such certificate is not attached, and by a duly attested copy of the instrument effecting the transaction sought to be confirmed and of such other documents as may be relied upon, and shall bear a court-fee stamp of rupees twenty or rupees ten according as the value of the consideration does or does not exceed rupees ten thousand.
(4) Where an application for confirmation is pending on the date of publication of these rules, the applicant, if necessary, shall amend the application and make up any deficiency in court-fee stamp in accordance with this rule within thirty days from such date, unless the Custodian, on sufficient cause being shown, extends the said period.
(5) The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published In a newspaper at the expense of the applicant."
36. We may mention here that there is some anomaly in the kind of certificate that is required under section 16(3)(a)(ii) of the 1949--Ordinance. While this section standing by itself requires "a certificate from the prescribed Income-tax Authority to the effect that no objection existed or exists to such creation or transfer", rule 12 says that the application for confirmation under section 16 B "shall be accompanied by a certificate in terms of section 3 of the Transfer of Property (Pakistan)
37. Ordinance, 1947 . . . . : ' The rule also prescribes certain court-fee stamps on the applica--petition for confirmation and also for issue of notices to interested persons. No material has been placed to show that the alleged confirmation of the sale transaction was preceded by the prescribed procedure.
38. It appears from the foregoing that a certificate from the competent Income-tax Officer is required for two purposes. One for the valid registration of the relevant deed under the Registra--petition Act, 1908, and the other for enabling the Custodian to consider the question of confirmation of the transaction under section 16 of the 1949-Ordinance corresponding to section 20 of` the 1957-Act.
39. Furthermore that a further certificate from the Custodian is necessary to enable the registering officer to register a deed required to be registered under the Registration Act, 1908.
40. It may have been noticed from the provisions of sections 20 and 21 of the 1957-Act (=sections 16 and 17 of the 1949 --Ordinance) that the issue of the particular kind of certificate as issued on the 31st January 1957, under the latter section necessarily involves and must precede the proceeding under the former leading to the grant of confirmation by the Custodian.
41. The learned Attorney-General has contended that the Income-tax Authorities should not have cancelled the certificates without notice to all the Interested parties. This contention is of academic interest now.
42. The Custodian was, therefore, perfectly right in setting aside by his order dated the 24th November 1960, the Additional Custodian's order dated the 29th August 1960. The Custodian was also right in refusing to interfere with the order dated the 24th November 1960, passed by his predecessor-In- office.
43. As regards question No. 4, in our opinion, there must be a subsisting Income-tax certificate as required under section 20(3)(a)(ii) of the 1957-Act corresponding to section 16(3)(a)(ii) of the 1949-Ordinance on the date when the confirmation is sought for or is granted. In the present case it is obvious that on the day when the Additional Deputy Custodian had granted the confirmation, the income-tax certificates dated the 14th December 1955, had already been cancelled, and there was no income-tax certificate of any kind in existence.
44. It has been contended on behalf of the respondents that once the income-tax certificates covering the transaction have been issued, the requirements of section 20 of the 1957-Act are fulfilled and that even if the certificates were in the meantime cancelled the cancellation will have no effect on the question of confirma--petition. The contention is not acceptable for a variety of reasons. It will make the Custodian helpless and seriously interfere with his duties, if in course of the inquiry which must precede the confirmation under section 20 of the 1957-Act, he finds that the certificate was issued purely through mistake or obtained through fraud. Such contention will also make nugatory the powers of the Custodian under section 43 of the 1957-Act corresponding to section 36 of the 1949-Ordinance relating to revision or review. This will also be inconsistent with the powers of the Income-tax Authorities to cancel the certificates in similar circumstances. The contention amounts to putting a premium on mistakes and irregularities. An interpretation that avoids such consequences should, therefore, be put on section 20(3)(a)(ii) of the 1957-Act. Applying such interpretation the certificates must be validly subsisting on the day of confirmation, whether it was issued in the past or has been issued in the present. In either case the income-tax certificate whether granted earlier at the time of transaction or subsequent to it must subsist on the date of the confirmation otherwise the Custodian has no other alternative under the law but to reject the application for confirmation.
45. We may add that apart from the requirement of section 20(3)(a)(ii) of the 1957-Act the Custodian can refuse to confirm the transaction on other grounds, namely, that the transaction was not or has not been entered into in good faith or for adequate consideration. More existence of an Income tax certificate is thus not enough to entitle the applicant to obtain confirmation.
46. As regards the first question the point for consideration is whether Writ petition No. 638 of 1962 was maintainable because an earlier similar petition; namely, Writ Petition No. 416 of 1962 had been withdrawn without permission to file a fresh petition and whether in such a case the provisions of Order XXIII, rule:-.1 of the Code of Civil Procedure applied. The order passed on Writ Petition No. 416 of 1962 on the 16th April 1963, was asfollows:- "Mr. Muhammad Aslam states that he be permitted to withdraw the petition. No permission is necessary for an unconditional withdrawal." -This withdrawal was made at the time when Writ Petition No. 638 of 1962 was pending. No material has been placed before us to indicate why Writ Petition No. 416 of 1962 was withdrawn. In the case of Hira Singh v. Puran and another (AIR 1930 Lab. 599(1)), it was held that the provisions of Order XXIII, rule 1 of the Code of Civil Procedure did not apply where the second suit was already pending on the date of the withdrawal of the first suit. With this view the High Court in the present case agreed. We agree with the views of the High Court. We do riot think that in the facts and circumstances of the case Writ Petition No. 638 of 1962 was not maintainable. This view finds support from the decision in Daryao v. State of U. P. (AIR 1961 SC 1457). In the case under report six writ petitions under Article; 226 of the Indians Constitution had been moved and were rejected by the High Court. There--upon the petitioners filed six writ petitions under Article 32 of -the Constitution before the Supreme Court of India. It was argued on behalf of the respondents that the dismissal of a writ petition filed by a party for obtaining an appropriate writ creates bar of res judicate against similar petition filed in the Supreme Court under Article 32 of the Indian Constitution on the same and similar facts and praying for the same and similar writ. It was held.
47. Inter alia, that if the petition before the High Court was dismissed as withdrawn, it could not be a bar to a subsequent petition under Article 32 of the Constitution because in such a case there had been no decision on the merits by the Court. Although this observation upon the facts of the case is confined only to the question of res judicate, it applied as a general pro--position to a previous writ petition which was withdrawn at the time a second writ petition was pending.
48. We may add that the right given under Article 99 of the 1962-Constitution was a constitutional right and unless there was an express liar to the contrary, Writ Petition No. 638 ref 1962 could proceed legally in spite of the fact that Writ Petition No. 416 of 1962 had been withdrawn before it had reached the stage of hearing on merits. In our opinion Writ Petition No. 638 of 19621 did not fall within the mischief of the principle that a person should not be vexed twice for the same matter. A contrary view will not affect the ultimate result of this appeal, for if we hold Custodian confirming the transaction covered by the sale deed.
49. The appeal is accordingly allowed and the impugned order of the High Court 9s set aside, and the order of the Additional Custodian, dated the 29th August 1960, is declared to be without lawful authority and of no legal effect.