' NASIR-UL-MULK, J.--- This appeal by leave of the Court is directed against the judgment of the Peshawar High Court dated 10-2-2004, dismissing the appellant's civil revision against the judgment and decree of the District Judge, Abbottabad, dated 11-3-2003, whereby the appellant's appeal from the decree of the Senior Civil Judge was rejected, with the result that dismissal of the appellant's suit by the trial Court was upheld.
2. Hazara Development Authority (HDA), the predecessor-ininterest of the Mansehra Development Authority (MDA), now appellant, filed a suit in the Court of Senior Civil Judge, Abbottabad, assailing the auction of its eight plots by the District Council, Abbottabad, in order to recover 4% tax on the transfer of property imposed by the defendant on the mutations based on award drawn in the acquisition proceedings whereby Hazara Development Authority had acquired land for Abbottabad Township. The plaintiff pleaded that the land acquired was subsequently derequisitioned and returned to the owners, who were never paid compensation in pursuant to the award. That since the plaintiff, did not become the owner of the property no tax on the mutations was leviable. The defendant pleaded, inter alia, that the plots owned by the plaintiff had been auctioned in order to recovery Rs,29,84,587, the amount due from the plaintiff as tax on mutations, under the District Council (Tax on Transfer of Immovable Property) Rules, 1963, (hereinafter referred to as Tax Rules, 1963). That the sale certificates had already been issued to the auction-purchaser and therefore, it was too late in the day for the plaintiff to question the auction. It may be noted that the plaintiff did not implead the auction-purchasers. The parties recorded their evidence on the issues framed and the trial Court dismissed the suit of the plaintiff, holding that the tax in question was lawfully due from the plaintiff, and it was recovered in accordance with the procedure laid down in the Recovery of Tax Rules, 1980, after the plaintiff had failed to pay the tax, despite several reminders. These findings were upheld by the Appellate and the High Court. Leave to appeal was granted to the appellants on 15-6-2006, essentially to consider as to whether the appellant Hazara Development Authority/ Mansehra Development Authority was liable to pay the tax in question merely on the basis of paper transaction when possession of the land was not taken by the appellant and the acquisition proceedings were eventually dropped.
3. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court appeared for the appellant and Mr. Gulzarin Kiani, learned Advocate Supreme Court.Entered appearance for the respondent.
The learned counsel for the appellant reiterated the arguments on which leave was granted and contended that though the land on which the tax was levied by the District Council, was acquired, award drawn, and consequently, incorporated in mutations but the owners were never paid compensation to whom the land was returned after de-notification of the acquisition. He, therefore, argued that since the land in question was eventually not transferred to the appellant it was not liable to pay the transfer tax.
4. The learned counsel representing the respondents submitted that amount of Rs,29,84,587 recovered through the auction of the appellant's plots was not only tax on the mutations of land which the plaintiff now claims to have been returned to the owners but the major portion thereof of Rs,19,72,773 related to the earlier award of land which had been divided into plots and disposed of through allotments. The learned counsel further referred to some correspondence wherein the Hazara Development Authority admitted liability to the extent of Rs,19,72,773 but expressed its inability to pay on account of paucity of funds. It was further pointed out that the defendant had to resort to the legal procedure under the Recovery of Tax Rules, 1980, and auction the plots of the appellant after it failed to pay the tax. The learned counsel further contended that the auction- purchaser of the plots auctioned by the defendant to recover the outstanding tax were necessary parties to the suit and despite the pointing out of this defect by the trial, Appellate and revisional Courts, the plaintiff made no effort to rectify it.
5. The Provincial Urban Development Board constituted under the Provincial Urban Planning Ordinance, 1978, acquired land in the year 1989 for the Hazara Development Authority at Nawansher Shamali, Tehsil and District Abbottabad, for a Township Scheme. The award for this acquisition was drawn and compensation paid to the owners, where after the land was divided into plot and sold out. Subsequently, another Notification was issued on 24-1-1994, acquiring 827 Kanals, 13 Marlas for the same Township Scheme. Award of this acquisition was also drawn and Mutations Nos.7158 and 5650 of this acquisition was attested on 5-9-1994. The plaintiff claims that this acquisition was not implemented as the owners were not paid compensation and the appellant never took possession of the land, and subsequently, on 27-7-1999 issued de-acquisition notification of the land. The amount of Rs,29,84,587 claimed by the defendant as tax on the transfer of the property included Rs,19,72,773 on the transfer of the land under the first award dated 23-11- 1989, the liability of which has been admitted by the appellant in its letter dated 18-4-1995 (Exh.1/8), assuring the defendant payment upon receipt of the amount from the Provincial Government, for which a demand had already been made. The dispute, therefore, in substance relates to the remaining amount of Rs,10,11,214, the tax on Mutation Nos.7158 and 5650. The learned counsel for the appellant, when confronted was unable to show as to whether the tax in question was livable upon attestation of the mutation or the actual transfer of the land. Be that as it may, the suit was filed on 26-2-1998, when the plots owned by the appellant had already been auctioned whereas the notification of de-acquisition was issued on 27-7-1999, more than a year after filing of the suit. The plaintiff did not assail in time the process under the recovery of Tax Rules, 1980, initiated by the defendant for the recovery of the tax, which eventually resulted in the sale of the appellant's plots through public auction. The auction proceedings were completed and the sale certificate issued to the auction-purchasers before the filing of the suit. By, then it was a past and closed transaction.
Interestingly the plaintiff in the plaint assailed the sale of the plots through auction but nevertheless did not impaled the auction-purchasers as defendants. This serious defect was noted by, the trial Court and a decision given against the plaintiff on, this issue (Issue No,5). Note of this defect in the plaintiff's suit was also taken by the appellate and the Revisional Court and it is for the first time that the appellant has filed an application before this Court for impalement of auction- purchasers. We are afraid it is too late in the day to rectify the error.
6. In view of the above, we do not find any justification to reverse the concurrent findings of the three Courts. Consequently, this appeal is dismissed with no order as to costs.