DAS GUPTA, J. - (1.) THIS is an application on behalf of Hind Estates, Ltd., inter alia for a writ of mandamus or writ of like nature directing the respondents Nos. 1 and 2 and each of them to forbear from giving effect to the notices issued by them to respondents Nos. 4 and 5 on diverse dates including 16th May, 1950, or from taking any further steps in pursuance of the said notices or taking or continuing any proceedings under s. 4(1) of the Payment of Taxes (Transfer of Property) Act, 1949.
(2.) THE case of the petitioner before me is as follows : THE petitioner, Hind Estates, Ltd., is a private limited company incorporated in India under the Indian Companies Act, 1913. THE registered office of the company is situate at No. 220/1, Lower Circular Road, Calcutta. THE respondents No. 4 and 5 by a registered lease dt. the 13th Dec., 1948, granted in favour of the petitioner a lease for 99 years commencing from 1st Jan., 1949, of a number of properties situate in Calcutta at a rent of Rs. 2,400 per month. By another indenture of lease, dt. 4th Jan., 1949, the petitioner also obtained a lease from the respondents No. 4 and 6 for a period of 99 years commencing from 1st Jan., 1949, at a rent of Rs. 1,000 per month of certain properties situate at Cawnpore. By a third indenture of lease, dt. the 20th Dec., 1948, the petitioner obtained a lease of certain properties in Delhi from the respondent No. 4, Mohamad Amin, for a period of 99 years commencing from 1st Jan., 1949, at a rent of Rs. 100 per month. After partition of India and on 7th Feb., 1948, an Ordinance being Ordinance No. III of 1948, was passed by the Government of India. Under the said Ordinance no Registering Officer should register any document which is required to be registered under cls. (a), (b), (c) and (e) of sub-s. (1) of s. 17 of the Registration Act, unless a certificate had been obtained from the Assistant CIT, to the effect that the person making such transfer is not liable to taxation under the Indian IT Act, the EPT Act or the Business Profits Tax Act, 1947, or that he has either paid or made satisfactory provisions for the payment of all existing and anticipated liabilities under any of the said Acts or that he has otherwise satisfied that the registration should be allowed. Sec. 4 of the said Ordinance provides that if any right, title and interest in any property whether movable or immovable, other than agricultural land has been transferred, assigned, limited or extinguished after 14th Aug., 1947, the ITO of the area where the property is situate may issue a notice to all or any of the parties to the transactions requiring them to produce a certificate prescribed by s. 3 of the said Ordinance and if no such certificate is produced, he may forward a statement to the Collector showing the existing and anticipated liabilities of each or any of the said parties and the Collector should then proceed to recover the total amount shown in the statement as if it were an arrear of land revenue and for that purpose may treat the said property as if it belonged to all or any of the persons named in the statement. Thereafter on the 6th Aug., 1948, another Ordinance was passed, being Ordinance No. XXI of 1948. The said Ordinance is practically in the same terms as the Ordinance No. III of 1948 with this variation, namely, that under s. 3 of Ordinance XXI of 1948 which is otherwise same as s. 4 of the Ordinance III of 1948, stocks, shares and securities are excluded from the operation thereof and in place of the words "the certificate prescribed by s. 3 used in s. 4 of the Ordinance III of 1948, the expression "a certificate by the Inspecting Assistant CIT of the said area in the terms mentioned in s. 2 of the said Ordinance" is used. The Ordinance XXI of 1948 expired on the 7th Feb., 1949, and on the 22nd April, 1949, an Act being Payment of Taxes (Transfer of Property) Act (Act XXII of 1949) came into force. The heading of the said Act is as follows :-- "An Act to make provision for the payment of taxes before transfers of property are registered in certain cases". The preamble of the said Act runs as follows :-- "Whereas it is expedient to make provision for the payment of taxes before transfers of property are registered in certain cases". The said Act, under s. 2 thereof, was made applicable to " any person who, on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbances or the fear of such disturbances, leaves or has, since the 14th Aug., 1947, left any place in the Provinces of India for any place outside India, or who, since the said date, has been residing in any place outside India ; or (ii) who, in the opinion of any of the IT authorities specified in sub-s. (1) of s. 5 of the Indian IT Act, 1922 (XI of 1922), or a Custodian of Evacuee Property or a Collector, is likely to leave the Provinces of India with the intention of settling in any place outside the Provinces of India, and in respect of whom a declaration that he is a person to whom this Act applies has been received from any such IT authority, Custodian of Evacuee Property or Collector by the registering officer of the area in which any property belonging to such person is situate".
(3.) SECS. 3, 4 and 9 of the said Act are material. Sec.3 runs as follows :- "Payment of taxes before registration of documents :--(1) Where any document required to be registered under the provisions of cl. (a), cl. (b), cl. (c) or cl. (e) of sub-s. (1) of s. 17 of the Indian Registration Act, 1908 (XVI of 1908), purports to transfer, assign, limit or extinguish any right, title or interest in any property, other than agricultural land, belonging to any person to whom this Act applies, no Registering Officer appointed under the said Act shall register any such document, unless it is certified by the ITO of the area in which the property is situate in respect of the person whose right, title or interest in the property is to be so transferred, assigned, limited or extinguished under the terms of the document that- (a) such person is not liable to assessment or taxation under the Indian IT Act, 1922 (XI of 1922), the EPT Act, 1940 (XV of 1940), or the Business Profits Tax Act, 1947 (XXI of 1947) ; or (b) such person has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the Acts specified in cl. (a) of this sub-section ; or (c) the ITO is otherwise satisfied that the registration of the document will not prejudicially affect the recovery of all existing or anticipated liabilities referred to in cl. (b) of this sub-section". Sec. 4 runs as follows :- "Recovery of taxes where property has been transferred without a certificate.--(1) Where, in respect of the transfer made on or after the seventh day of February, 1948, in the Provinces of Bombay, West Bengal, East Punjab, Bihar, Delhi and Ajmer-Merwara, and in any other Province on or after the date on which the Transfer of Property (India) Ordinance, 1948 (III of 1948), was made applicable to that Province, of any right, title or interest in any immovable property, other than agricultural land, belonging to any person to whom this Act applies, the ITO of the area where the property is situate is satisfied, after giving such person notice in this behalf for a period of not less than one month, that no certificate in the terms mentioned in s. 3 would have been issued to him if this Act had been in force on the date the transfer was made, he may forward a statement to the Collector showing the existing and anticipated liabilities by way of taxes in respect of all or any of the parties to the transfer. . . . . ." Sec. 9 runs as follows :- "Effect of expiry of Ordinance XXI of 1948-On the expiry of the Payment of Taxes (Transfer of Property) Ordinance, 1948 (XXI of 1948), s. 6 of the General Clauses Act, 1897 (X of 1897), shall apply as if the Ordinance had then been repealed by a Central Act." At the time of the granting of the leases in favour of the petitioner by the respondents Nos. 4 and 5 hereinbefore mentioned, the Ordinance XXI of 1948 was already in force.;