' NASIM SIKANDAR, J.---On 12-5:1981 the petitioner M/s. Okara Textiles Limited purchased a factory owned and possessed by M/s. Sutlej Cotton Mills Limited Okara which was earlier declared as Enemy Property under, the provisions of Defence of Pakistan Ordinance, 1965. The aforesaid Mill comprised on 105-Acres, 4 Kanals, 4 Marlas and 7 Sarsai together with buildings, superstructures, fixtures and fittings. The sale-deed evidenced payment of a consideration of Rs,40,00,000. At the time of registration the parties to the transaction namely Brig. Manzoor-ul-Haq Malik, Addl.
Custodian, Enemy Property, Ministry of Communications, Government of Pakistan Islamabad and petitioner No,2 Mr, Javed A. Zia, Chairman and Managing Director Okara Textiles Limited the purchaser company, made an undertaking in writing which reads as under:-- "This is to certify that the area and building under the Sutlej Cotton Mills, Okara have been sold out for Rs,40,00,000 (Rupees Forty Lacs only). This is the actual amount which has been fixed and paid as the sale price of the said premises. However, it comes to the notice of the authorities concerned at a later stage that the property was undervalued, it would be the liability of the parties concerned to make up the deficiency towards stamps duty etc."
2. The Deputy District Officer (Registration), Okara respondent No,1 on 3-8-2005 issued a demand notice for payment of stamp duty of Rs,31,36,46,000 on the alleged total value of the property transacted through the said sale-deed at Rs,3,48,89,55,556. Another notice was issued by the respondent No,2/Council Officer District Council Okara on 5-7-2005 raising a demand of local council fee at Rs,6,79,23,889 on transfer of said property.
3. These notices were challenged before this Court through Constitutional Petition No,14651 of 2005.
That petition was disposed of by me on 22-8-2005 directing that the impugned recovery notices shall be deemed to be show-cause notices, which will be replied to by the petitioners. Also the petitioners will be heard by the respondent-Deputy District Officer (Registration) Okara before passing of an order. On 22-9-2005 the respondent No,1 passed an order raising demands against the petitioners of Stamp Duty, Registration Fee, Local Council Tax (Zila Council) and Local Council Tax (N.C. Okara) respectively at Rs,15,78,00,805, Rs,2,86,91,055, Rs,6,69,28,889 and Rs,47,98,750.
4. That order is sought to be challenged through this constitutional petition inter alia, on the grounds that after registration of the sale-deed the respondent No,1/Registration Authority became functus officio and, therefore, had no jurisdiction to reopen and decide the questions relating to alleged deficiency of stamp duty, that respondent No,1/DDO (Registration) Okara has no jurisdiction to look into the alleged deficiency in stamp duty nor he has the jurisdiction to determine the question of fee on transfer of property chargeable under the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, that the alleged "undertaking" has no nexus nor the same could confer any jurisdiction on the respondent No,1 to adjudicate and raise the aforesaid demands, that no evidence worth the name was brought on record to hold that the value of the property was under-stated , that the respondent failed to consider the distinction between the expressions "Instrument" and "Transaction" as assed by the counsel for the petitioners, that the instrument of sale-deed was properly stamped on the value chargeable on the date of its execution, that the estimation of value by the respondents on the basis of the valuation table notified under section 27-A of the Stamp Act, 1899 (for short the act) was per se illegal inasmuch as these provisions were added to the Statute in the year 1986 by the Punjab Finance Act, 1986; that the document having been executed by a senior functionary of the Federal Government and having certified the payment of the consideration even in the undertaking the respondent No,1 could not lay his hands upon the deed after 24 years of its execution; that the said undertaking has totally been misconstrued by the respondent No,1; that the issues of stamp duty on the sale-deed and the local council fees on transfer of property were past and closed transactions which could not be reopened in one guise or the other; that the claim of the respondent No,1 in the impugned order that he was assuming jurisdiction under the said direction of this Court is clearly a misstatement of law as well as fact, that the allegation made in the impugned order qua the petitioners having intentionally deprived the Government of duties and making a reference for proceedings on criminal side is intimidating, mala fide and an attempt to harass the petitioners unjustly and illegally; that Brig. Mansoor-ul-Haq Malik acted on behalf of government under the powers conferred on him by the government under Rule 185 of the Defence of Pakistan Rules, the possibility of any undervaluation was totally baseless; that the Mill in question was a sick unit and despite various attempts the Government and the Custodian Enemy Property failed to run it and, therefore, it was finally decided to dispose it of and that legally the Government of Pakistan being seller no stamp duty was chargeable on the deed in view of proviso to section 3 of the Act.
5. The respondents in their reply have supported the impugned order. Without mentioning the exact provisions of law under which it was recorded the respondent No,1 has claimed that he was legally competent to pronounce the order; that the issue of jurisdiction had already been decided by this Court while referring the matter to him for adjudication; that by virtue of the undertaking dated 12-5-1981 the petitioner was bound to m2ke good deficiency on account of stamp duty and local taxes; in sub para. (e) of reply to the grounds taken in the petition the respondents state as under:-- "Incorrect. The material facts were concealed at the time of registration of sale-deed. In fact it was a transaction of mill, buildings, superstructure, fixtures, machinery and land comprising 106-acres, 4-kanals, 4-marlas were Rs,80 millions, but the sale deed was prepared for Rs,40 lass only, causing huge loss to government exchequer. It stands proved on the force of evidence tendered that the actual sale consideration agreed between the parties was 80-million and was fraudulently shown only 4 million to evade government taxes. The letter No,3(3) CEP/2005-Pt-522 dated 8-9-2005 of.
Deputy Secretary/ Additional Custodian Enemy Property, Ministry of Communication, Government of Pakistan and Summary for the Cabinet No,3(8)-CEP/81 dated 11-5-1983 submitted by Federal Secretary Communication are on record and proved beyond any shadow of doubt that the property was undervalued at least 20-times to evade government taxes etc."
' It is further stated that the impugned order is bona fide and has been passed in public interest and that petitioners being vendees and beneficiaries of the sale-deed are responsible to make up deficiency in the stamp duty and also to pay other local council fees.
6. Having heard the parties at length I have concluded as under:--
(i) The respondent No,1 has failed to point out the provisions of law under which he could assume jurisdiction and to raise the impugned demand after passing of as many as 24 long years of the date of registration of sale-deed. The reliance of the learned counsel for the petitioner in that regard on the ratio settled in three judgments of this Court and one Full Bench Judgment of the Madhya Pradesh High Court is therefore, pertinent and relevant. In the first judgment re. Thakar Das and others v. The Crown, (AIR 1932 Lahore 495) a Full Bench of this Court inter alia, held that a Registrar requiring production of a document under section 33 of the Stamp Act (1899) on the ground that it was not duly stamped after it had been registered and delivered to the party concerned could not be said to be acting "in performance of his functions". Further that a reference by him to the Collector under section 33 was also ultra vires as was the order of the Collector raising demand of extra duty and penalty. In the second case re. Lala Uttam Chand v. Pei-man Nand and others, (AIR 1942 IC Volume 203 page 7) a Single Bench of this Court while interpreting the word "produced" as used in section 33 of the said Act concluded that a party could not be compelled to produce the document after its registration. In the third case a Full Bench of the Madhya Pradesh High Court in re. Kornai Chand and another v. The State of Madhya Pradesh, (AIR 1966 Madhya Pradesh 20) again while interpreting the expression "in the performance of functions" held that the Registering Authority became functus officio after registration of C document and it had no jurisdiction to impound the document as contemplated in section 33(1) of the Act. In the last judgment relied upon at the bar, Amjad Ali, J. In re. Khurshid Begum v. Sub-Registrar and 2 others, (2001 CLR. 337) while disposing of a number of identical constitutional petitions set aside the impounding of documents by the Registration Authority after these had been registered.
(ii) There is no explanation whatsoever as to the reason for awakening of the respondents. Nos.1 and 2 from the deep slumber after a period of, 24 years of the registration of the document. Para. 2 of the impugned order opens with the words "when it came in the notice of concerned authority through Council Officer, Zila Council Okara vide his letter No,1706-8/CO/ZC/OK dated 25-6-2005 that an area of 82 acre 4 Kanal 4 Marla and 7-Sarsahi out of 106 Acre 4 Kanal 4 Marla 7-Sarsahi was in the territorial limits of Zila Council Okara and the same was undervalued at the time of registration in the sale-deed because in the sale-deed all buildings, superstructures and all the fixture fittings installed therein in the Mill or all trees, fences, hedges, sewer drains, watercourse rights, liberties, privileges, it was definitely registered undervalued". Such reason or justification on the part of the Registering Authority to raise the impugned demand for the various reasons stated in the impugned order is again not supported either by a provision of law or the rules framed thereunder. The view of the Council Officer/respondent No,2 propelling respondent No,1 to initiate the action that the sale-deed in question was "definitely undervalued" and that it was a fraudulent transaction is also not supported from any material on record.
(iii) I am surprised that an officer of the Provincial Government and the District Council had the audacity to allege fraud on the part of the Federal Government. The sale-deed in question was executed by the Federal Government through a senior functionary. The contention that the sale consideration was agreed between the parties at Rs,80 million while it was fraudulently shown only at Rs,4 million is sought to be supported by the letter, referred to in para-5 above. That letter written by Deputy Secretary/Deputy Custodian (EP), Government of Pakistan dated 8-9-2005 in all reads as: "I am directed to refer to Deputy District Officer (Registration)'s letter No,371-73/SR(0) dated 6th September, 2005 on the above subject and to say that in pursuance of Cabinet Decision, Sutlej Cotton Mills, Okara, an Enemy Property, was transferred to Mr. Javaid A. Zia who picked up liabilities of the Mills amounting to Rs,80 million and there was no cash transaction."
In the first place that letter as against recitals containing in the sale-deed is hardly of any avail.
Secondly, even if it is accepted that no cash transaction actually took place and it was only for the transaction in hand that a certain amount was declared to have been received by the Federal Government, the Registrar at the relevant time had no jurisdiction to dispute the value of a property as disclosed by parties to the transaction. His competence. To proceed to require making up deficiency in the stamp was relatable only to the declared value and not a value assessed by him. His competence to insist upon a minimum value notified under section 27-A of the Stamp Act only came into being in the year 1986. Therefore, the computation of the value of the property transacted in the year 1981 on the basis of the table notified under section 27-A of the Act for the current year viz. 2005 is all the more fallacious. As a matter of fact learned counsel for the respondents realizing the illegality in estimating the value of the property at the current rate which stood registered some 24 years back has offered to re-consider the same in order to fix its valuation at the rate prevalent in the year of its registration. That request is too optimistic to be considered seriously. As rightly pointed out by the petitioner the provisions of section 27-A of the Act were added to the Stamp Act in the year 1986 by Punjab Finance Act 1986 to provide for the competence of the District Collector to fix minimum value in respect of rural and urban lands for the purpose of charges of the duty. Earlier to the insertion of that section neither the District Collector nor the Provincial Government in any manner was competent to fix the value of a property which was subject matter of a sale-deed presented for its verification/registration.
Therefore, the desire of the respondents to undertake an exercise in the year 2007 Which it could not undertake in the year 1981 cannot legally be granted.
(iv) The alleged assumption of jurisdiction on the, basis of undertaking is also devoid of any force. It is an established preposition of law that except where provide by law itself, the consent of the parties cannot confer jurisdiction on any Court, Tribunal or Authority which is otherwise not available to it By the same token the consent or undertaking of parties cannot deprive a forum, court, Tribunal or Authority of the jurisdiction which is vested in it by law. I am also of the view that the respondents are attempting to approbate and reprobate. They are relying upon the contents of the undertaking to assume jurisdiction but are not ready to accept a part of it which clearly stipulates that the Mill in question was sold for Rs,4 million which was the actual price fixed and paid. The respondents cannot blow hot and cold in the same breath. If they are relying upon the undertaking then they must accept the document as a whole and not the mere holding out that in case subsequently the property is found to be undervalued they will make good the loss to the provincial revenue.
(v) I am also in agreement with the petitioner that the conclusion drawn by respondent No,1 while recording the impugned order that he was assuming jurisdiction on the basis of my order dated 22-8-2005 is legally as well as factually incorrect. In that constitutional petition I had accepted the contention of the petitioners that raising of a demand without notice and affording an opportunity of hearing was improper. That order did not confer any jurisdiction on the respondent No,2 as the same was otherwise not available to him either under the Registration Act or the Stamp Act. It is only the law enacted by the legislature which can be invoked to exercise a jurisdiction. No court, Tribunal or forum howsoever high can confer a jurisdiction to a forum, court or tribunal which is not available to it under the law nor it can deprive a forum, court or Tribunal of a jurisdiction which is available to it under the law.
(vi) A fraud has to be alleged in every detail which is certainly not a case in hand. Mere opinion of the respondent No,2 conveyed to respondent No,1 that the transaction was "definitely fraudulent" is .Neither here nor there. The move made by the respondent No,2/the Council Officer and the impugned order passed by respondent No,1. Speak of the approach of a Tax Collector dressed in the straight jacket of obsession for recovery. In 2007 PTD 512 re: M/s. Shan Traders v. The Assistant Commissioner of Income and others decided on 15-11-2006, the Assessing Officer estimated the value of the property purchased by the assessee from Lahore Development Authority at Rs,16,92,000 per kanal as against the one indicated by the transfer letter at Rs,12,00,000 per kanal.
While speaking for the Division Bench I disapproved the enhancement of value of the property by the Assessing Officer on the ground that the transfer letter issued by an official agency supporting the transaction at a certain amount could not be held to have been a case of understatement.
Also that the investment made in the plot/land and declared in the wealth statement having been supported by a document issued by an official agency there was no occasion at all to place a higher value to it and to deem the balance as unexplained investment. The present petitioner having a sale-deed executed directly by a senior functionary being a representative of the Federal Government at a particular value has a better case under the Stamp Act.
(vii) The objection against maintainability of his petition cannot be sustained. The impugned order for the reasons recounted above being without jurisdiction on the face of it, the objection is rejected. And,
(viii) I will also agree with the petitioner that the instrument of sale deed having been executed on behalf of government no duty was chargeable to it in view of proviso (1) to the charging section 3 (Instrument Chargeable with duty) of the Stamp Act, 1899.
7. Therefore, I will allow this petition and declare the impugned order as also the resulting demand to be without jurisdiction and of no legal effect.