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Writ Petition No. 289 of 1960, decided on 4th December 1961.
--Sale not confirmed because only 1/30th part of agreed price was paid before Registrar, though vendor admitted receipt of balance‑No opportunity given to prove payment of entire amount‑Violation of natural justice‑Custodian's order refusing confirmation quashed by writ‑Constitution of Pakistan (1956), Art. 170.
Azizullah K. Shaikh for Petitioners.
S. A. Shaikh for Respondent No. 1.
Haleem for Respondent No. 2.
Date of hearing : 4th December 1961.
‑The facts relevant for the consideration of this writ petition may be shortly stated : By a registered sale deed dated 4th June 1949, the petitioners purchased certain agri cultural land from a Hindu for a consideration of Rs. 29,375‑10. They applied to the Deputy Custodian, Sukkur for the confirmation of this transaction under section 16 of the Ordinance XV of 1949. This application was made somewhere in the year 1950, but as the income‑tax clearance certificate of the vendor had not been obtained the matter was postponed from time to time and on 9th September 1958 the Deputy Custodian rejected this application on the ground that considerable time had been allowed to the petitioners to produce the certificate which he had failed to do. On that day nobody was present on behalf of the petitioners. The petitioners preferred an appeal against this order to the a Additional Custodian (Judicial) who rejected it on the ground that ample time for obtaining the income‑tax clearance certificate had been given and that he was not prepared to give any more time for it. The petitioners then took this matter to the Custodian of Evacuee Property by a revision petition under section 43 (4) of Act XII of 1957.
2. The learned Custodian in his order dated 27th July 1960, observed that the objection about the non‑production of the income‑tax clearance certificate no longer applied because a certificate by that time had been obtained and produced. With regard to the absence of the petitioners on the date of hearing he observed that this can be overlooked, because in spite of such absence the order of the Deputy Custodian could still be challenged on merits. He, however, went on to observe that though the sale was brought about by a registered document yet out of the agreed price of Rs. 29,975/10 only a sum of Rs. 1,000 had been paid before the Sub‑Registrar at the time of the registration. He then observed that though in the sale deed itself the vendor had admitted the receipt of payment of the balance of the consideration on different dates before the execution of the sale deed, it was difficult to accept this because if the petitioners had enough money and if they were willing to pay it to the transferor the proper course to them was to make the payment in the presence of the Sub‑Registrar at the time of registration. On this ground alone he dismissed the revision petition, because he was of the opinion that no useful purpose would be served by sending the case back to the Deputy Custodian for decision on merits. The validity of this order of the Custodian has been challenged in this writ petition.
3. We have heard the Advocates of the parties and we are of the opinion that this writ petition must succeed. The learned Custodian having condoned the delay in the production of the income‑tax clearance certificate and having also overlooked the absence of the petitioners or their counsel before the Deputy Custodian on the date on which the petition for confirmation was dismissed should have sent the case back to the Deputy Custodian for the consideration of the application for confirmation on merits. Admittedly he recorded no evidence, nor did he call upon the petitioners to prove the payment of the sale consideration besides the sum of Rs. 1,000 paid before the Registrar) by further evidence apart from the mere admission of the vendor in the sale deed. 1n fact he did not hold any inquiry and the petitioners were given no opportunity to substantiate their case that they had paid the agreed price. The course adopted by the learned Custodian clearly violates the principle of natural justice. He was dealing with this matter in the exercise of his revisional jurisdiction and, having condoned the delay and the default upon which ground alone the petition had been rejected by the Deputy Custodian, he could not then proceed to decide the matter without giving an opportunity to the petitioners to prove that they had in fact paid the whole of the consideration. It may have been possible for the petitioners to prove by cogent evidence, apart from the recitals of the sale deed, that the consideration had been paid. This opportunity was denied to them.
4. We, therefore, allow this writ petition and quash the order of the learned Custodian dated 27th July 1960. The case will now go back to the Custodian. We make no order as to costs.
S. B, /A. H.
Petition allowed.
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