JAWAD HASSAN, J.--Through the instant constitutional petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has made the following prayers: In view of the circumstances mentioned above, it is, therefore, most respectfully prayed that the impugned order dated 18.01.2018 may kindly be set aside as being illegal, coram non judice, and without lawful authority.
It is further prayed that direction may kindly be issued to Respondent to register tenancy agreement under the provision of section 5 of Rent Premises Act, 2009."
2. The facts tersely revealed from the petition are that the Petitioner got land on tenancy from the Respondent No,2 (the "Pro forma Respondent") and in this regard a tenancy agreement (the "Agreement") was executed between the Petitioner and the Pro forma Respondent for a period of twenty (20) years. To fulfil the requirement of Section 5 of the Punjab Rented Premises Act, 2009 (the "Act"), the Petitioner and the Pro forma Respondent submitted an application for registration of the agreement to the Respondent but he refused vide the impugned order dated 18.01.2018 (the "Impugned Order"). Hence, this petition.
3. The learned counsel for the Petitioner inter alia submitted that the Impugned Order is against the law and facts; that the reasons for refusing the application of the Petitioner for registration of the agreement are unjust and against the spirit of law as the agreement was submitted for the registration under the Act which does not burden payment of stamp duty to the landlord and tenant for the registration of tenancy; that the Respondent was not authorized to refuse the application of the Petitioner imposing certain conditions rather was bound to register the agreement under Section 5 of the Act; that the only meant for registration of agreement before the Respondent is proof of relationship of landlord and tenant; that as per the requirements of law stamp paper of Rs,1200/- was purchased for the purpose of execution of agreement between the parties, as such the reason for refusing the application that stamp papers of different nature were used for writing the agreement is also illegal; that the condition of stamp duty @ 5.25% under Article 35(c)(1) of the Punjab Finance Act, 2017 (the "Finance Act") only applies to lease agreements which are for more than twenty (20) years; that the Impugned Order has been passed against Article 4 of the Constitution.
4. On the other hand, learned Law Officer vehemently controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that as the Petitioner neither adopted the prescribed mode of issuance of stamp paper nor accompanied the Government levied stamp duty, the agreement was rightly refused to be registered; that the agreement was also extendable for additional 10 years as per Article 2 of the agreement; that the Impugned Order was passed in pursuance of provisions of the Stamp Act, 1899 (the "Stamp Act") as amended under the Finance Act under Section 35(1) of the Stamp Act: that infact it was not a tenancy agreement rather a lease agreement as the contents of the agreements matter and the caption does not matter.
5. I have heard the detailed arguments from both sides and perused the record minutely.
6. In the instant petition, the Petitioner has sought a judicial review by this Court of the Impugned Order dated 18.01.2018 passed by the Respondent, under Article 199 of the Constitution. The Respondent has refused the registration of the agreement on two (2) grounds, namely (1) stamp papers were purchased by the local stamp paper vendor whereas it was required to be issued in the form of e-stamp papers by the Bank of Punjab, and (2) the agreement is required to be affixed stamp paper duty at the rate of 5.25% under Article 35(I) of the Stamp Act because the period of the tenancy is more than twenty (20) years. The main grievance of the Petitioner is that while passing the Impugned Order, the Respondent went beyond his jurisdiction and even has failed to exercise his authority within the prescribed parameters of law. Before touching the merits of the case, the mechanism of the law has to he looked into.
7. The Act was enacted to regulate the relationship of landlord and the tenant. The "tenancy agreement" is defined under Section 2(m) of the Act as: "an agreement in writing by which a landlord lets out a premises to a tenant"; "landlord" is defined under Section 2(d) of the Act as: "the owner of a premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises"; and the "tenant" is defined under Section 2(1) of the Act as under: 2(1) "Tenant means a person who undertakes or is bound to pay rent as consideration for the occupation of a premises by him or by any other person on his behalf and includes ;
(1) a person who continues to be in occupation of the premises after the termination of his tenancy for the purpose of a proceeding under this Act;
(ii) legal heirs of a tenant in the event of death of the tenant who continue to be in occupation of the premises; and
(iii) a sub-tenant who is in possession of the premises or part thereof with the written consent of the landlord." (emphasis added)
8. The Rent Registrar is not defined under the Act. The Rent Registrar is, however, appointed under Section 17 of the Act which reads as under: "17. Rent Registrar.--(1) The Government shall appoint a Rent Registrar in a district or an area as it may deem necessary.
(2) The Rent Registrar shall maintain a register to enter particulars of a tenancy agreement, agreement to sell or any other agreement in respect of rented premises." (emphasis added)
9. It is evident from the language of Section 17 that the Rent Registrar is only required to maintain A register of tenancy agreement and its particulars, with any other agreement in respect of the rented premises. Section 5 of the Act, reproduced below, provides a mechanism to register the tenancy or any other agreement with the Rent Registrar executed between the landlord and the tenant, which is considered a proof of their relationship: "5. Agreement between landlord and tenant. -- (1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.
(2) A landlord shall present the tenancy agreement before the Rent Registrar.
(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.
(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.
(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.
(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in subsection (2)."
10. From the above reproduced Section 5(1), (2) and (6), the landlord is required to execute a tenancy agreement with the tenant and to present such tenancy agreement, or any other agreement between them, before the Rent Registrar for its registration into the register maintained by the Rent Registrar under Section 17. Under Section 5(3) and (6), the Rent Registrar is required to:
(i) enter the particulars of the tenancy and any agreement executed between the landlord and the tenant in that register; (ii) affix his official seal on the tenancy agreement; (iii) retain its copy; and
(iv) return the original tenancy agreement to the landlord. The registered tenancy agreement or its certified copy is considered a proof of the relationship of the landlord and the tenant.
11. Section 6(1) of the Act lays down the contents of the tenancy agreement, which include: (a) particulars of the landlord and the tenant; (b) description of the premises; (c) period of the tenancy; (d) rate of rent, rate of enhancement, due date and mode of payment of rent; (e) particulars of the bank account of the landlord, if the rent is to be paid through a bank; (f) the purpose for which the premises is let out; and (g) amount of advance rent, security or pagri, if any.
12. Under Section 8 of the Act, the existing landlord and tenant are required to bring the tenancy in conformity with the provisions of this Act: "8. Existing tenancy. -- An existing landlord and tenant shall, as soon as possible but not later than two years from the date of coming into force of this Act, bring the tenancy in conformity with the provisions of this Act."
13. Section 9 of the Act provides the penalty to be paid by the tenant and landlord for non- compliance of the provisions of the Act, in case they approach and file an application under the Act before the Rent Tribunal: "9. Effect of non-compliance.--If a tenancy does not conform to the provisions of this Act, the Rent Tribunal shall not entertain an application under this Act--
(a) on behalf of the tenant, unless he deposits a fine equivalent to five percent of the annual value of the rent of the premises in the Government treasury; and
(b) on behalf of the landlord, unless he deposits a fine equivalent to ten percent of the annual value of the rent of the premises in the Government treasury." (emphasis added)
14. Neither any provision of the Act restricts the period of tenancy, nor it require the tenant or the landlord to pay any specific stamp duty on the tenancy agreement. Section 3 of the Stamp Act read with its Schedule I, however, lays down the amount of the stamp duty chargeable on each instrument mentioned in Schedule I, and provides: "3. Instruments chargeable with duty.-- Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that schedule as the proper duty therefor respectively, ...."
15.Section 17 of the Stamp Act provides: "17. Instruments executed in Pakistan. -- All instruments chargeable with duty and executed by any person in Pakistan shall be stamped before or at the time of execution."
16. Section 35 of the Stamp Act provides: "35. Instruments not duly stamped inadmissible in evidence, etc.-- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped "
17. Serial No, 35 of Schedule 1 of the Act provides following Proper Stamp-duties to be paid on the instruments: LEASE, including an under lease or sub-lease and any agreement to let or sub-let:
(1) where by such lease the rent is fixed and no premium is paid or delivered:
(b) Where the lease purports to be for a term of twenty years:
(1) in case of immovable property in an urban area: 5.25% of the average annual rent of the lease.
(ii) in any other case: 3.25% of the average annual rent of the lease.
(c) where the lease purports to be for a term in excess of twenty years or in perpetuity:
(i) in case of immovable property in an urban area: 5.25% of the consideration equal to the whole amount of rent which would be paid or delivered in respect of the first ten years of the lease.
(ii) in any other case: 3.25% of the consideration equal to the whole amount of rent which would be paid or delivered in respect of the first ten years of the lease.
(d) where the lease does not purport to be for any definite term:
(i) In case of immovable property in an urban area; and
(ii) in any other case.
(2) (a) where the lease is granted for money advanced and where no rent is reserved:
(i) in case of immovable property in an urban area; and
(ii) in any other case
(b) where the lease is granted for a fine or premium and where no rent is reserved:
(i) in case of immovable property in an urban area; and
(ii) in any other case
(3) (a) where the lease is granted for money advanced in addition to the rent reserved:
(i) in case of immovable property in an urban area; and
(ii) in any other case
(b) Where the lease is granted for a fine or premium in addition to the rent reserved:
(i) in case of immovable property in an urban area; and
(ii) in any other case (emphasis added).
18. Section 5 of the Act has to be read with Sections 17 and 6 of the Act and its non-compliance is specified in Sections 8 and 9 of the Act, therefore, it was obligatory to the Petitioner to get the agreement registered with the Rent Registrar under Section 5 of the Act. This Section emphasized the preamble of the Act and also facilitates the landlord to file ejectment petition under Section 15 of the Act. From the bare reading of the Section 5 of the Act, it is unequivocal that all the subsections of Section 5 of the Act lay emphasize only to register the particulars of the agreement.
It does not specify the powers of Rent Registrar to direct the parties to pay the duty as per the Finance Act. The basic purpose of the entry of the agreement with the Rent Registrar is to bind the landlords and the tenant to comply with the requirements of the registered tenancy agreement.
The Section 12(a) of the Act states that the landlord shall provide a certified copy of the agreement to the tenant. The certified copy can only be provided if it is made under Section 5(3) of the Act.
The above said Sections are introduced to maintain record and also to mitigate the un-necessary litigation pertaining to rent/lease. They also provide the method for the registration of the rent agreement in order to streamline the rights and obligations arising out of the rent agreement.
19. Before going any further, let us examine the contents of the tenancy agreement attached with the instant Petition. The Tenancy Agreement was signed between Headquarters 8-Division, Sialkot Cantonment through Project Officer (the "Headquarters") and the Petitioner in 2017, for the purpose of setting up, installing and operating Petrol Pump on Company-Owned-Company-Operated basis, on a land owned by the Headquarters. The period of tenancy is twenty (20) years, extendable for another ten (10) years with mutual consent of the parties, under Article 2 of the Tenancy Agreement: "Article No,
2. The contract shall be for a period of twenty (20) years and extendable for another ten (10) years after mutual consent of the Parties. The period of contract will commence the day Petrol Station starts operation/functioning"
20. Article 3 of the Tenancy Agreement provides the rent of the land for first period of twenty (20) years: "Article No,
3. The HASCOL shall pay to the Headquarters 8 Division Rs, 235000/- per month as rental amount for the said land for first period of 20 years."
21. In view of above, reproduction of relevant Article of the tenancy agreement, it is clear that the agreement is for only twenty years and not in excess of twenty years rather only extendable for another ten years after mutual consent of the parties, meaning thereby that, it may be A extended with the mutual consent of the parties. It cannot, however, be presumed at this stage that the agreement will be extended in future. The law does not base on predictions/presumptions rather specific language of agreement is to be taken into consideration. Therefore, the contention of the Respondent that the agreement is for a period exceeding twenty years is incorrect and accordingly declined. As such, the Impugned Order is illegal and is not sustainable in the eye of law. So far as the other reason in the Impugned Order is concerned, in this regard, I have gone through the whole file and found nothing which could support the contentions of the Respondent.
22. In view of the above, it is apparent that the jurisdiction of the Rent Registrar is barred to pass the Impugned Order when a special law had been promulgated and its functions have specifically been mentioned. Reliance in this regard can be placed on the case titled Syed Mohammad Areeb Abdul Khafid Shah Bukhari v. Government of the Punjab and others (PLD 2018 Lahore 390) wherein this Court recently held that after issuance of the Notification No,SO (JUDL-III) 4-24/2004 dated 6.01.2012 whereunder the appointment of a Rent Registrar was made and the power of compulsory registration of rent agreement stood vested to notified Registrar and no other authority is competent to register any rent agreement, as such, the Rent Tribunal established under Section 35(d) of the Act has no jurisdiction even to entertain application and pass an order on the application under Section 5 of the Act for registration of rent agreement after issuance of the above said notification dated 26.01.2012 whereas learned Tribunal functioning as Rent Registrar has illegally assumed the jurisdiction and passed the impugned order dated 06,01.2015 which is patently illegal void ab initio and same is hereby set aside. The application under Section 5 of the Act filed by the petitioner may be returned to the petitioner to file before the notified Rent Registrar for registration of rent agreement.
23. The Article 4 of the Constitution guarantees the right of the Petitioner to enjoy the protection of law and to be treated in accordance with law being his inalienable right; no action detrimental to the life, liberty, body, reputation or property of the Petitioner shall be taken except in accordance with law; the Petitioner shall not be compelled to do that which the law does not require him to do.
Under the said Article every individual has the right to be dealt with in accordance with law and no person is liable to do which the law does not require him to do. In the case titled Faisal Sultan v.
E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]), it has been clearly held as under: "An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan. "
24. It has been established in the case of Azizullah Memon v. Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it had vitiated entire proceedings including final order, which could not be sustained under the law. The Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly. Furthermore, in the case of Muhammad Haleem and another v. General Manager (Operation) PakistanRailways Headquarter, Lahore and others (2009 SCMR 339), it was clearly held that when initial order or act relating to initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.
25. It is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal. (rel. Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission (2016 PLC (CS) 1184 [Quetta]); Falak Niaz v. Amal Din (2016 YLR 2047 [Peshawar]); Sabz All Khan v. Inspector General of Police, KPK (2016 YLR 1279 [Peshawar]); Cantonment Board Clifton v. Sultan Ahmed Siddiqui (2016 CLC 919 [Karachi]); and Federation of Pakistan v. Asad Javed (PLD 2016 Islamabad 53).
26. As discussed above and in view of the applicable law and the judgments of the Hon'ble Supreme Court of Pakistan referred above the Respondent has not acted in accordance with law wrongly stating that the period of tenancy is for more than twenty years. Therefore, in this case, the act of the Respondent/Rent Registrar is patently illegal and void.
27. In view of what has been discussed above, the instant petition is accepted and the impugned order dated 18.01.2018 is set aside; consequently, the case is remanded to the Rent Registrar with the direction to the Respondent to decide the case of the Petitioner afresh under the applicable law and considering the fact that the period of tenancy is for twenty (20) years only.