' The petitioner through this Constitutional petition has prayed for a declaration that recovery of additional stamp duty on the sale deed amounting to Rs,2,94,695 is illegal, unjustified, void ab initio, without jurisdiction and for a direction to the respondents to refund the amount.
' Khewat No,161, Khatuni No, 1160 situated in village Amersadhu, Tehsil and District Lahore. He vide agreement to sell dated 11-4-1981 agreed to sell the same to the petitioner at the rate of Rs,39,000 per Kanal. However, this deal could not mature, therefore, the petitioner was constrained to file a suit for specific performance of the agreement. The suit was contested by the defendant and it was ultimately decreed by the trial Court vide judgment and decree dated 18-5-1991. The defendant filed R.F.A. No, 157-A/92 in this Court, which was decided on 18-6-1992. Thereafter the petitioner moved the trial Court for execution of the decree: The judgment-debtor did not appear, therefore, executing Court got the sale deed executed and deputed its Reader to appear before the respondent No, 2 for its registration. The respondent No,2, however, refused to register the document on the pretext that the same was under-valued. The petitioner accordingly apprised the learned executing Court through an application under section 151, C.P.C. And agreed to pay the additional amount of stamp duty under protest. The application was allowed. The petitioner deposited the additional sum of Rs,2,92,145 on 29-6-1992. Thereafter the respondent No, 2 pointed out that the amount is still deficient by Rs,2,550, which amount was deposited in the treasury on 5- 7-1992. Thereafter the deed was registered. It is added that the petitioner made repeated representations which included the representations made on 22-7-1992, 21-12-1992, 5-6-1993 and also called upon the respondent No, 2 time and again but he in spite of strong promises took no step to dispose of the representations of the petitioner for refund of the additional stamp duty. This way he was constrained to invoke the Constitutional jurisdiction of this Court. The petition was admitted to hearing and notice was issued to the respondents, who have filed the report and are represented by Syed Niaz Ali Shah, learned Additional Advocate-General.
3. The learned counsel for the petitioner argued that the deed was not under-valued. The price was fixed in good faith and paid through Court but the respondent No, 2 proceeded in a mechanical manner while directing the petitioner to pay the additional stamp duty. It is added that the respondents failed to appreciate that the petitioner could not be made to pay the stamp duty at the prevalent market price. The arguments are summed up with the submission that the petitioner and his vendor have settled the price genuinely and the respondents could not legally dispute the same. The learned counsel in this behalf has referred to Khalid Pervaiz Khan Tareen and another v.
Deputy Commissioner/Registrar, Quetta and another (PLD 1994 Quetta 9), Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others (1993 CLC 2073) and Mubarak Ahmad v. Sub-Registrar, District Courts, Faisalabad (1993 CLC 1666).
4. On the other hand, the learned Additional Advocate-General argued that the respondent No, 1 provided full opportunity to the petitioner to plead his case and after careful consideration upheld the decision of the respondent No, 2 whereby the petitioner was directed to pay ad valorem stamp duty in accordance with the rate fixed and notified by the Collector. It is submitted that the additional stamp duty was in compliance with the orders of the Board of Revenue after obtaining advice of the Law Department, therefore, there is no merit in the writ petition.
5. I have given my anxious consideration to the arguments advanced on behalf of the parties. The admitted position is that the petitioner agreed to purchase the land through agreement to sell dated 11-4-1981 and to have its fruit he has to file a suit for specific performance which was decreed by the trial Court on 18-5-1991. It is also admitted that out of total consideration of Rs,6,96,900 an amount of Rs,1,80,000 had been paid as earnest money while the balance of the sale price amounting to Rs,5,16,900 was deposited in the Government treasury. It is clear from the above facts that the suit was not collusive between the parties and the price was genuinely fixed and paid. The respondents have failed to bring on record anything even to suggest that this was not the real price.
6. The respondents were ill-advised to hold that the sale deed presented through Court was insufficiently stamped because it amounted to modifying the decree which was beyond their powers.
7. The careful study of the Contract Act, Specific Relief Act and Registration Act reveals that the fixation of the valuation of the property is exclusively a matter between vendor and vendee. There may be strong reasons A for the vendor to sell his property at a price less than market value and similarly for vendee to purchase a property at a higher rate than market price. The Sub-Registrar is bound to register an instrument under section 71 of the Registration Act provided it has been properly stamped. There was a general tendency that the instruments presented for registration in respect of the urban immovable properties were under-valued. In order to curve the tendency the Government in the first instance issued instructions to specify a schedule for urban areas fixing valuation but the same were held illegal by the Courts in the absence of legal back up. Thereafter section 27-A was added in the Stamp Act by Act IV of 1986, which came into force on 14-6-1986.
The respondent No, 1 was empowered by section 27-A to notify a table of valuation for each urban area.
8. The question which arises for determination is whether the respondents were justified to direct the petitioner to pay additional stamp duty. The reply is in negative because the respondents while demanding the payment of additional stamp duty did not keep in mind that this section came into force on 14-6-1986 and was not given retrospective effect, therefore, could not have been made applicable to a transaction pertaining to 1981. This is not all. The respondents have not placed on record any notification issued by the respondent No, 1 under section 27-A of the Stamp Act. On the other hand, it was held by my learned brother Malik Muhammad Qayyum, J. In the case of Mst.
Sobia Hanif (supra) decided on 10-5-1993 that notification has to be published. The relevant portions of the judgment read as under:- "3. The grievance in the present petition, however, is that irrespective of the consideration for which the sale has taken place, the Sub-Registrar, Lahore, is demanding payment of stamp duty on the basis of a valuation table prepared by the Collector under section 27-A of the Stamp Act, 1899. The validity of the order of the Deputy Commissioner/Collector has been questioned in these petitions.
14 . In the present case, the learned Additional Advocate-General himself stated that he had repeatedly instructed the respondents to produce the record to show that the valuation table has been publicised either of its publication in the newspaper or by making the contents customary method, like beating of drums or affixation of the table at public place. Unfortunately, no such record was produced and there is nothing to show, that the contents of the valuation table were either brought to the notice of the public or to the residents of the locality to which it related. It appears that no attention was paid to this aspect of the matter and the. Valuation table was only conveyed to the concerned officers. That being so, the valuation table issued by the Collector cannot be said to have been notified and is, therefore, of no legal effect."
The same is the position here, therefore, the respondents have no jurisdiction or authority on 29-6- 1992 and 5-7-1992 to direct the petitioner to pay the additional stamp duty.
9. The upshot of the above discussion is that this petition is allowed and the respondents are directed to refund a sum of Rs,2,94,695 within two weeks. <