JUDGMENT IHSAN-UL-HAQ CHAUDHARY, J. - The relevant facts are .That the petitioner is owner of one room situated in Model Town, Faisalabad. He agreed to sell the same to one Muhammad Nawaz and executed sale deed in favour of the vendee. The sale deed was presented to respondent No. 1 for registration, who returned and refused to register the same with the remarks that the petitioner should first make payment of tax no Municipal Corporation. Faisalabad and produce the receipt thereof in accordance with memo, of Board of Revenue dated 29.10.1991. It is added that respondent No. 1 wotted not register any document until same is cleared by respondent No. 9. The petitioner has dubbed acts of the respondent, as illegal and mala fide and challenged the same through this Constitutional petition, which was admitted to hearing on 21.11.1995. The respondents have entered appearance and contested the petition.
2. The learned counsel for the petitioner argued that respondent No. Cannot compel the petitioner for payment of tax to Municipal Corporation before the registration of sale deed. In this behalf, reference is made to Rule 4 of the Punjab Local Councils (Tax on Transfer of Immovable Property)
Rules. 1981. It added that according to the rules tax becomes payable after the registration of the document, therefore, the petitioner could not be compelled to pay the same in advance, In this behalf, reliance is placed on Ashok Kumar v. Delhi Administration and others (AIR 1982 S.C. 1143) and Abdul Jabar Butt and another y. The State of Jammu and Kashmir (AIR 1957 S.C. 281). It is argued that respondent No. I is under legal obligation- to register a document subject to the provisions of Stamp Act and cannot refer the executant to respondent No. 9. It is submitted that the Board of Revenue is subordinate to the Government, therefore, it cannot amend the rules framed by Government under section 167 of the Punjab Local Government Ordinance, 1979. In this behalf, reference is made to section 4 of the Board of Revenue Act (Act XI of 1957). It is argued that for this reason alone the impugned memo, dated 19.10.1991 is without jurisdiction and illegal. It is added that tax on transfer of immovable property is to he worked out under rule 3 at the rate of 4% fixed by the Government on the 'sale consideration.' The respondents No. 1 and 9 had no jurisdiction coerce a citizen to pay amount over and above the sale consideration It is added that respondent No. 8 is looting the people with the blessing of the respondents particularly respondents No. 1 and 9.
The learned counsel .In this behalf has placed on record three photo copies of the sale deeds with original receipts showing charging of the amounts over and above the consideration fixed in sale deeds.
3. On the other hand, Mr. Muhammad Bashir Chaudhry, learned A.A.G, argued that the memo, dated 29.10.1991 was issued because the citizens were avoiding payment of tax on transfer of immovable property to the Municipalities etc. It is, therefore, frilly justified and the parties to instrument should pay the amount of the tax simultaneously with the registration of the instrument.
It is added that the amount of tax is to be assessed on the basis of consideration, which should be in accordance wit h section 27-A of the Stamp Act and the Contractor cannot charge a single penny over and above the said amount. It is candidly conceded that the Municipal Corporation has authority to recover the amount of tax as arrears of land revenue under rule 7 but the addresses as given in the instruments are usually not complete and this way at least recovery is delayed.
4. .Malik Saeed Hassan. Advocate for respondent No. 8 argued that assessment and collection of the tax is being made strictly in accordance with Rule 4 relied hv the learned counsel for the petitioner. It is added that the tax shall become due 'as soon as' the sale deed is registered. It is argued that the term as soon as' means simultaneously and at the same time, In this behalf learned counsel argued that reference can be made to the Black's Law Dictionary and Webster's. It is added that the petitioner can challenge the order passed under the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules. 1981, therefore, the present writ petition without availing the remedy of appeal is incompetent. In this behalf, learned counsel has referred to Jahangir Hussain v. Mayor, Municipal Corporation, Rawalpindi, and others (1994 CLC 1610) and Mubarak Ahmad u. Sub-Registrar, District Courts, Faisalabad and 4 others (1993 CLC 1666). It is argued that the amount of consideration is to be worked out by respondent. No. 9 and respondents No. 3 and 9 are not bound by the schedule issued by the Government under section 27-A of the Stamp Act. It is added that the amount has to be assessed and calculated under the Rules of 1981. It is submitted that writ petition is without any grievance. The petitioner if genuinely aggrieved could file appeal before the Registrar against the order of Sub-Registrar, therefore, the present writ petition is not competent. It is added that in any case the petition raises disputed questions of fact, therefore, the proper remedy for the petitioner is civil suit. It is argued that if the petitioner if intended to make payment of the tax then it is immaterial whether it is paid in advance or subsequently. It is added that it is clear from this conduct of the petitioner that the real intention is to evade the payment of tax. The next argument is that the quantum of tax is to be worked out under the Rules of 1981 and if the petitioner is aggrieved by the assessment he can file appeal. It is explained that question of payment would only arise after the decision of appeal.
5. The learned counsel for the petitioner while summing up the arguments submitted that this Court has already decided most of these points in C.R.No. 591 of 1995, decided on 10.7.1995. It is added that in this revision it was conceded by the Advocate General, Punjab, that respondent No. 9 does not figure anywhere in the registration of sale deed.
6. I have given my anxious consideration to the arguments of the learned counsel fan the parties, gone through the record, relevant provisions of law and rules as well as precedent cases. The main questions for decision are the time of payment of tax on transfer of immovable property and its quantum. The tax is assessed and collected under Rule 4 of the Rules of 1981, which reads as under:- "4. Assessm ent and collection of tax.-(1) Where an immovable property is transferred through a registered deed, the tax shall become due as soon as the sale deed is registered and may be assessed and collected by the Taxation Officer either directly or through the Registrar or. Sub- Registrar concerned if so authorised by the Hoard of Revenue either by a General or special order.
(2) Where an immovable property is transferred orally and such transfer is followed by a mutation in the Revenue Officer, the tax shall he vine due as soon as the mutation is sanctioned and may be assessed and collected by the Taxation Officer either directly or through the Revenue Officer concerned if so authorised by the Board of either by a General or a special order.
(3V Where a transfer is not covered by the sub-rule (D or sub-rule (2), the tax shall become due as soon as the sale takes place, arid may be assessed and collected by the Taxation Officer at the office of local council."
The parties have relied on this rule. The learned counsel for respondent No. 8 argued that, the term 'as soon as' means simultaneously and at the same time and in this behalf, he has relied on Black's Law Dictionary and Webster's Third New International Dictionary. I have consulted the dictionaries referred to by the learned counsel for respondent No. 8. The term 'as soon as' has been assigned following meanings in the Webster's New International Dictionary:-- "as soon as conj: immediately at or just after the time that (as soon as he came, the meeting began) It is clear from t he above meanings and the text of Rule 4 that the payment of local councils tax is to follow act of registration of an instrument. The learned counsel for the petitioner in this behalf has rightly referred to the judgments in the cases of Ashok Kumar and Abdul Jabar Butt and another (Supra). In this behalf, reference can also be made to the judgments in the cases of S.G. Sardesai u. The Provincial Government (AIR (36) 1949 Allahabad 395), Durgadas and others v.
Rex (AIR (36) 1949 Allahabad 148), Mural Patwa v. Province of Bihar (AIR (35) 1948 Patna 135), Muhammad Hashim v. The State (PLD 1956) (W.P.) Karachi 485) and Khan Ghulam Muhammad Khan Loonkhawar and others V. The State (PLD 1957 (W.P.) Lahore 497).
7. It is clear from the judgment in the case of Ashok Kumar (Supra) that the term 'as soon as' does not mean simultaneously while in the case of Abdul Jabar Butt and another (Supra) it was held that the word 'forthwith' did not mean the same thing as 'as soon as', which was interpreted as under-:- ........... Quite clearly the period of time predicated by the phrase as soon as may be' begins to run from the time the detention in pursuance of the detention order beings. The question is -- what is t he span of time, which is designated by the words 'as soon as may be'? The observations of Dysart, J. In King's Old Country Ltd. v. WWK 603 at p. 606 (B), quoted in Stroud's Judicial Dictionary. 3rd edition, Vol. Page 200, are apposite. Said the learned Judge. "to do a thing 'eft soon as possible' means to do it within a reasonable time, with an understanding to do ^it within the shortest possible tyne". Likewise to communicate the grounds 'as soon as may be' may well be said to mean to do so within a reasonable time with an 'understanding to do it within the shortest, possible time "
It is clear inn the judgments in the cases of Ashok Kumar, Abdul Jabar Butt and another.
Muhammad Hashim and Khan Ghulam Muhammad Khan Loonkhawar and others (Supra) that the time as soon as started running from the date the. Detention orders took effect. It is. Therefore, evident that the term 'as soon us' cannot be said to mean simultaneously or 'forthwith' as argued by the learned counsel for respondent No. 8
8. Li is clear from the above discussion that the tax becomes payable only after the registration of the document, therefore, respondent No. 1 is under legal obligation to register all the documents presented to him and he cannot, legally refer the executant to respondent No. 9 for getting the tax under Rules 1981 assessed or postponed registration of the document till payment of (lie tax. It is clear from the arguments advanced on behalf of respondent No. 8 and the memo, dated 29.10.1991 that the respondents illegally and arbitrarily interpreted Rule 4 to mean that the payment of tax is to be made even before the registration. This is clearly against t he text of the rule 4. As reproduced above, which provides that as soon as the sale deed is registered respondent No. 9 may assess and collect the tax either directly or through Registrar or Sub-Registrar concerned. The Board of Revenue was ill advised to issue the impugned memorandum, which runs counter to the statutory rules. The same should have been withdrawn after the judgments in the cases of Muhammad Yaqoob and Mubarak Ahmad (Supra).
9. Now coming to the next question of quantum of the tax. The tax is levied under Rule 3. Which reads as under:- - "U. Levy of Tax.-(l) A local council may or where the Government, so directs shall levy a tax on the transfer of immovable property situated within its limits. ~
(2) The rate of the tax shall be such as may be fixed and notified by Government from time to' time as a percentage of the amount of consideration of transfer of property.
Explanation.- For the purpose of this rule "consideration" means the price paid for the transfer of the immovable property and where no price is paid the market value as assessed by the authority competent to collect the tax."
Therefore,, the quantum of tax shall be percentage of the amount of consideration while the percentage to be as fixed and notified by the Government. The term 'consideration', which had not been defined either in the Rules or in the Local Government Ordinance, therefore, explanation was added Wherein it has been defined as the price paid for the transfer of immovable property and where no price is paid the market value as assessed by the authority competent to collect the tax.
It is, therefore, clear that the Municipal Authorities have no jurisdiction, authority or power to change the figure of price paid for the transfer. In other words, the price quoted in the document and accepted by the Sub-Registrar in terms of section 27-A of the Stamp Act cannot be changed, modified by the Municipal Authorities. However, where no price is paid the competent Authority has jurisdiction to determine the market value. In this view of the matter, it is concluded that respondent No. 9 cannot question the consideration as fixed in the sale deed.
10. It is clear from the above discussion that if Rule 4 is followed in letter and spirit then the confusion as to the rate of tax, mala fide introduced by respondent No. 8, shall also come to an end.
11. Now coming to the vires of impugned notification of the Board of Revenue. The Board of Revenue was constituted under Board of Revenue Act (Act XI of 1957) and according to section 4(2) thereof it is subject to the control of the Government. It is clear from Rule 4 of the Rules of 1981, as reproduced above, that the Board was empowered to authorise recovery through Registrar or Sub- Registrar and the same could be by general or special order. The authority was to be exercised strictly in accordance with the text but the Board of Revenue instead. Proceeded to issue the following direction:- "You are accordingly requested that the Sub-Registrars should be bound to register any document of immovable property only if receipts of all the taxes including the Baldia tax are attached with the documents."
This clearly runs counter to Rule 4 of Rules of 1981, as reproduced above.' The Board of Revenue clearly travelled beyond the authority bestowed by the Rules. The statutory rules cannot be modified or amended by administrative instructions. The learned counsel for the petitioner in this behalf has rightly referred to the case of Province of Punjab, through Collector and 8 others v.
Muhammad Yaqoob (1992 CLC 2065).
12. Now coming to the preliminary objections that the petitioner had remedy of appeal against the order of Sub-Registrar refusing to register a document as well as against the assessment of tax by respondent No. 9. The objections are without any merit for the simple reason that respondents No. 1 and 9 have not passed any order. Secondly, neither respondent No. 1 nor 2 nor respondent No. 9 has any authority to question the vires of the impugned circular issued by Board of Revenue. It is interesting to note that respondent No. 1 did not deny the contentions in the petition and these technical objections were only taken by respondent No. 8, whose anxiety seems to be to continue illegally squeeze the amounts from the pockets of the citizens.
13. The rules are comprehensive and fully safeguard the recovery of the tax on transfer of immovable property. In this behalf, reference can be made to rule 7, which provides that if the tax assessed under Rule 4 is not paid the same shall he recoverable as arrears of land revenue. This also supports the above view that tax is payable only after the registration of the document. It may been mentioned here that fiscal provisions are to be strictly construed, therefore, there was no scope for issuing of the memorandum by the Board of Revenue making the payment of tax advance. It seems that the real intention is not to secure the payment of the municipal dues but to assist the Contractor to over charge the citizens. The learned counsel for the petitioner has. Not only alleged this fact but proved by production of three receipts whereby the persons have to pay tax assessed arbitrarily, illegally and without reference to the sale deeds. Respondent No. 9 is directed to ensure that all complaints/claims of the citizens in respect of over charging are decided within 30 days of their receipt.
14. The upshot of the above discussion is that by accepting this writ petition with costs it is declared that respondent No. 1 is under legal obligation to registrar a document drawn in accordance with the provisions of Contract, Registration and Stamp Acts and he neither can refer the matter to respondent No. 9 or anyone else for assessment of tax under Rules of 1981 nor he can compel payment of such tax before the registration of the document; the tax is payable on consideration and after the registration of the document and the instructions of the Board of Revenue contained in the impugned memo, dated 29.10.1991 are illegal and ultra vires of the Rules of 1981-