' IQBAL HAMEED-UR-RAHMAN, C.J.--Through the instant constitutional petition under Article, 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has made the following prayers:-
(i) It is respectfully prayed that the stamp duty and registration fee with regard to the 2008 documents may kindly be declared-as having duly been paid and no stamp duty or registration fee is outstanding against the petitioner;
(ii) That stamp duty and registration fee with regard to the 2010 Security Documents be also declared to have duly been paid;
(iii) That 2010 Security Documents having been duly registered in accordance with law be directed to be delivered to the petitioner without any further delay;
(iv) In alternate, in case the 2010 Security Documents have been impounded, the actions/orders/proceedings by respondents NoS.2, 3 and 4 be declared as illegal and of no legal effect with the direction that 2010 Security Documents be duly registered and delivered to the petitioner forthwith.
2. Precisely, the facts necessary for the adjudication of the instant writ petition are that the petitioner is a Public Limited Company.. Pursuant to the Power Policy, 1994, in order to encourage foreign direct investment in the private power sector, respondent No.1 vide notification dated 23rd May, 1995, was pleased to reduce to a consolidated rate of 1% stamp duty and registration fee chargeable on, or in respect of the registration of all deeds, documents and instruments pertaining to lender's security in respect of private power companies which are party to Implementation Agreement with the President of Islamic Republic of Pakistan. Relying upon the said notification, the petitioner acquired property situated in revenue estate of Pind Baigwal, District Islamabad, bearing Khewat No. 753 (New Khewat No. 1079) Khatooni No. 1653 (New Khatooni Nos. 1951 and 1952) vide sale deed registered on 30th May, 1996. In view of the requirements of I.C.T. Notification for confirmation of the validity of Implementation Agreement, the petitioner submitted documents to respondent No.5 who in turn confirmed the validity of the Implementation Agreement, amounts secured for the lender and the consolidated stamp duty and registration fee of 1% to respondent No.1, for its record and further action for registration of the said documents. The petitioner, from 1996 is following the said procedure. In April, 2010 in view of the enhanced rate of gas prices by Sui- Northern Gas Pipeline Limited (S.N.G.P.L.), the petitioner was required to enhance the letter of credit facility in favour of Sui-Northern Gas Pipeline Limited (S.N.G.P.L.) by amending the security documents pertaining to Master agreement, therefore, upon finalization of the negotiations with its lender, the petitioner vide its letter dated 16th April, 2010 approached respondent No.5 in the first instance for confirmation of the enhanced amounts and respondent No.5 vide its letter dated 28th July, 2010 confirmed that the consolidated rate of stamp duty and the registration fee in respect of the 2010 Security documents of Rousch Power Project/petitioner company is 1% , if registered in I.C.T.
And, as such, the total stamp duty and registration fee to be charged from the Company is Rs,6,666,667/-. Thereafter, the petitioner approached respondent No.3 for certification of 2010 Security Documents under sections 31 and 32 of the Stamp Act, 1899 and upon issuance of Challan Form from the office of respondent No.4; the petitioner deposited total sum of Rs,6,666,667/- in the Government Treasury in order to get registered the 2010 Security Documents and the petitioner was informed to collect the duly registered documents within next two days of issuance of registration receipt, however, when the petitioner approached respondent No.4 for collection of the registered 2010 Security Documents, the petitioner company was informed by respondent No.2, that the documents could not be delivered because audit team of I.C.T. Has pointed out short payment of Rs,8 million in respect of documents presented by the petitioner for registration in the year 2008, hence, the instant petition..
3. Learned counsel for the petitioner argued that impugned action of impounding 2010 Security documents by the respondents is illegal and against the law applicable in this regard; that failure of respondent No.4 to deliver the registered 2010 Security Documents to the petitioner company is in clear violation of the Registration Act, 1908 and Stamp Act, 1899; that section 33 of the Stamp Act, 1899 empowers a public authority to impound the documents, if it appears to him that the document is not duly stamped but in the case of the petitioner, same does not attract because the petitioner's 2010 Security Documents have been duly stamped and same have been duly registered in Book No.1, leaving no discretion with respondent No.4 to refuse the delivery of the same to the petitioner; that Section-33 of the Stamp Act, 1899 empowers In charge of Public Office, to impound certain instrument, if it appears to him that such instrument is not duly stamped.
Learned counsel for the petitioner has vehemently argued that the Finance Security documents pertaining to the year -2008 have been duly certified by the Collector Islamabad under section 32 of the Stamp Act, 1899 and thereafter, pursuant to the same, challan had been issued and the petitioner had duly deposited an amount of Rs,23,000,500/- which was duly determined by respondent No.1 under Section 31 of the Stamp Act, 1899, as such, audit objection raised in the year- 2009, after about two and half years of the registration of Finance Security Documents is based on mala fide intentions and the said liability cannot be determined without affording an opportunity to the petitioner company to contest and explain his position, as provided under section 48 of the Stamp Act, 1899. The said procedure has not been adopted by the respondents, as such the impugned action of the respondents regarding impounding of 2010-Security Documents of the petitioner company is not sustainable in the eye of law. The respondents in accordance with Section 48 of the Stamp Act, 1899 are bound to adopt the procedure provided under the Act and to allow the petitioner to participate in the proceedings. Learned counsel in this regard has relied upon 2000 CLC 1877 [Lahore], PLD 2000 Lahore 433, PLD 2007 Lahore 507 and PLD 2010 Lahore 123.
4. Conversely, learned Deputy Attorney- General argued that during the course of audit of the office of Sub-Registrar, Islamabad for the year 2007-2008, it was pointed out that a consolidated rate of 1% stamp duty and registration fee was to be charged on total secured amount mortgaged Rs,3.1 billion instead of availed limit of Rs,2.3 billion and as such, the petitioner was asked to deposit amount of Rs,80,00,000/- (Eighty lac) in the Government Treasury and 2010 Security Documents have been impounded by respondent No.4 in order to compel the petitioner to deposit Rs,8,000,000/- as government revenue.
5. Learned counsel for respondent No.5 argued that Private Power Infrastructure Board on the request of the petitioner company had confirmed that the total stamp duty and registration fee to be charged from the company on the amount secured under the 2010-Security Document is Rs,6,666,667/-.
6. I have heard the learned counsel for the petitioner, learned Deputy Attorney-General as well as learned counsel for respondent No.5 and perused the record appended with the instant petition.
7. Petitioner, through the instant writ petition seeks a declaration to the effect that the impugned action of the respondents regarding impounding of 2010 Security Documents submitted by the petitioner company be declared as illegal and against the norms of justice. It is evident from the documents appended with the instant writ petition that 2010-Security Documents of the petitioner have been impounded by respondent No.4 under section 33 of the Stamp Act, 1899, due to deficiency of Rs,80,00,000/- on account of registration fee against the documents registered in the year 2008, by his office relating to the petitioner's company, as pointed out by the Audit Party during the audit of the Office of Sub-Registrar, Islamabad for the year 2007-08.
8. From the bare perusal of section 33 of Stamp Act, 1899, it is crystal clear that In charge of a public office, except an officer of Police, before whom any instrument chargeable in his opinion, with duty, is A produced or comes in the performance of his functions, shall if it appears to him that such instrument is not duly stamped impound the same. As such, section-33 of Stamp Act, 1899 does not empower respondent No.4 to impound the documents presented by the petitioner company, on the basis of deficiency of registration fee pertaining to the 2008-Security Documents, got registered by the petitioner company in the year-2008. The impugned action of respondent No.4 is not in line with Stamp Act, 1899 and the said Act by any stretch of imagination does not empower respondent No. 4 to impound the security documents presented by the petitioner company in the year 2010 for registration.
9. If any amount is recoverable from the petitioner Company on the basis of deficient registration fee in respect of Security Documents of the petitioner company got registered in the year-2008, respondents could proceed against the said Company in accordance with section 48 of Stamp Act, 1899, which reads as under:-- "48. Recovery of duties and penalties.---All duties, penalties and other sums required to be paid under this Chapter may be recovered by the Collector by distress and sale of the movable property of the person from whom the same are due, or by any other process for the time being in force for the recovery of arrears of land revenue."
' The above-mentioned re-produced Section of Stamp Act, 1899 empowers the Collector to recover all duties, penalties and sums etc. By distress or by sale of the moveable property of the person from whom the same are 'due, as such, Stamp Act, 1899 no-where authorizes respondent No.4 to impound the documents presented by the petitioner company for registration in the year 2010, therefore, the impugned action is not sustainable in the eye of law.
10. Further-more, it is settled principle of law that when a thing is to be done in a particular manner, it must be done in that way and not otherwise. Reliance in this regard is placed on the judgment reported as Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others (2010 SCMR 1437).
11. In view of the above perspective, the instant writ petition is accepted and the impugned action of respondent No.4 regarding impounding of 2010-Security Documents of the petitioner company, is hereby declared as illegal and without any legal justification. Respondent No.4 is directed to deliver 2010-Security Documents to the petitioner company, if the petitioner company has paid stamp duty and registration fee in respect of these documents. So far as, the deficiency in registration fee, in respect of the documents presented by the petitioner in the year 2008 is concerned, if any such amount is due and the petitioner company is liable to pay such amount on account of deficiency in registration fee, respondent No.4 may adopt legal course, as provided under section 48 of the Stamp Act, 1899, for the recovery of the said amount.