' The relevant facts for the decision of this constitutional petition are that the petitioner agreed to take on lease part of the premises of E.F.U. House, Gulberg Road, Lahore for a period of two years at the monthly rent of Rs,360,000 which was to be paid in advance. The petitioner executed a Lease Deed in favour of its landlord. The value for the purposes of stamp and registration fee was fixed at Rs,43,20,000 rent for one year, under Article 35(a)(ii) of Stamp Act, 1899 (hereinafter to be referred as 'Act of 1899'). The respondent No,2 returned the Lease Deed after holding that as amount of Rs,86,40,000 has been paid in advance, therefore, the instrument is chargeable under Article 35(b)
(i) of the Act of 1899. This way there was a deficiency of Rs,2,88,800 in stamp. The petitioner filed an appeal before respondent No,1, who after noting that as the document was insufficiently stamped, therefore, the same should have been impounded under section 33 of the Act of 1899 and the case forwarded to District Collector/District Registrar for further action under the law. Thereafter, it was held that the sub-Registrar has not followed the proper procedure, therefore, the file was returned to him vide order dated 3-6-1988. The petitioner has now challenged both the orders of respondents. The writ petition came up for limine hearing on 13-7-1998 when it was admitted to regular hearing and notices were issued to the respondents, who were represented by Rana Muhammad Arif, learned Additional Advocate-General.
2. Learned counsel for the petitioner argued that as the monthly rent was fixed and only the same was paid in advance for two years, therefore, the instrument was fairly and squarely covered under clause (a)(ii) of Article 35 of Act of 1899. In this behalf learned counsel has referred to (1854) ILR 7- Madras 203 and Union of India v. M/s. Caltex (India) Ltd. (AIR 1966 Punjab 488).
3. On the other hand, learned Additional Advocate-General argued that this was a case covered by clause (c) of Article 35 of Act of 1899 and not by clause (a) because the lease was granted for money advanced and the rent was reserved. Learned Additional Advocate-General in this behalf placed reliance on In re Chief Controlling Revenue Authority (S.B) (AIR 1952 Bombay 285) and Caltex (India) Ltd. v. The Union of India and others (AIR 1961 Punjab 12).
4. I have given my anxious consideration to the arguments and gone through the record, relevant provisions of Stamp Act and precedent cases.
' The admitted position is that in the Lease Deed rent was fixed at Rs,360,000 per month; the lease is for two years and the entire rent had been paid in advance. Learned counsel for the petitioner argued that the case of the petitioner was covered by clause (a)(ii) of Article 35 of Schedule to Act of 1899. The same reads as under:-- "35. Lease, including an under lease or sub-lease and any agreement to let or sub-let.
(a) - Where by such lease the rent is fixed and no premium is paid or delivered. ' where the lease purports to be for a term of not less than one year but not more than three years.
' The same duty as on a Bond (No,15) for the amount or value of the average annual rent reserved.
' As against the above provisions the learned Additional Advocate-General relied on Clause (c)(i) of Article 35 of Schedule to Act of 1899. ' The same reads as under: - "35. Lease, including an under lease or sub-lease and any agreement to let or sub-let. ' where the lease is granted for money advanced in addition to rent reserved. The same duty as is leviable on a Conveyance (No,23) for a consideration equal to the amount of advance as set forth in the lease, in addition to the duty which would have been payable on such lease, if no advance had been paid or delivered; provided that, in any case when an agreement to lease is stamped with the ad valoram stamp required vi for a lease and a lease in pursuance of such agreement is subsequently executed, the duty on such lease shall not exceed four rupees.
' It is clear from the above clauses that the essential conditions are that:
(i) Lease is granted for money advanced; and
(ii) rent is reserved in addition.
' In the present case no money has been advanced, therefore, the basic ingredient to attract the clause is lacking. If the contention of the learned Additional Advocate-General is accepted then it would amount to reading the word 'rent in advance' as 'money advance'. The substitution of words are not possible in view of the cardinal principle of interpretation of statute that the words are not to be added or substituted readily in the statute. The basic rule of interpretation of statute is that word of the statute should not be deptarted on the ground that IA something was omitted. In this behalf reference can be made to Elavarthis Paddabba Reddi v. Iyyala Varada Reddi (A.I.R. 1929 Mad. 236). The superior Courts of Pakistan further refined the rule and the result is that now it is to be presumed that an enactment operates in a manner which would be just, reasonable, equitable and fair. In this behalf reference can be made to Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) and Abdul Rahim v. M/s. United Bank of Pakistan (PLD 1997 Karachi 62).
5. It is also settled rule of interpretation that fiscal and penal statutes are to be construed strictly. In this behalf reference can be made to Qamar-uz-Zaman v. Zilla Council, Bahawalpur (1990 MLD 1748) and Syed Mohsin Ali Hasani v. Government of Pakistan (1990 SCMR 1685).
6. The respondent No,2 as against this has referred to clause (b)(i) of Article 35 to Schedule to Act of 1899. The same reads as under:-- "(b)(I) Where the lease is granted The same duty as is leviable on a for money advanced and Conveyance (No,23) for a where no rent is reserved, consideration equal to the amount of such advance as set forth in the lease."
' The same was not attracted at all for the reason that no money was advanced and the rent was reserved, therefore, the case of the petitioner was not covered by clause (b) or (c) of Article 35 of Act of 1899.
7. Now the question is as to under, which clause of the Article 35 of Act of 1899 the present case is covered? Learned counsel for the petitioner has relied, as already noted, on clause (a)(ii) of Article 35 of the Act of 1899. The requirements of this clause are that:
(i) rent is fixed;
(ii) no premium is paid or delivered; and
(iii) the term should be not less than one year and more than th'ee years.
' In the present case neither any amount has been advanced nor any premium has been paid. It is a case where the only rent has been reserved, which has been paid in advance for the entire term.
1 he learned counsel for the petitioner has relied on (1854) ILR 7 Madras 203. The relevant portion of the judgment reads as under:-- ' "In the first case, the stipulation for the payment of Rs,50 is a stipulation for a payment of rent in anticipation and not for the payment of a premium or fine; in the second case, the stipulation amounts to no more than an agreement that the lessee shall pay a year's rent in advance; and in the third case, that although the parties may have understood and described the transaction as a mortgage, it was in fact a sale of term or lease for nine years with a reserved rent of Rs,35, in condideration of Rs,899-19-0, the amount of the debt and interest."
' The judgment in the case of Union of India (supra) is a Full Bench judgment. In this case the question for determination before the Full Bench was the proper stamp duty payable on instrument of lease dated 27-7-1954 between P.C., Bandari and Caltex (India). The Full Bench formulated the questions as under:- ' "What we have called upon to decide that the Article is applicable to the lease deed is 35(b)(iii) or 35(c) of Schedule-I of the Indian Stamp Act."
' The Full Bench asnwered the question that the document of lease was properly stamped and Article 35(c) was not applicable. The brief facts leading to dispute were that lease deed was presented before the Sub-Registrar ND for registration. It was executed on non-judicial stamp paper of Rs,85. The Sub-Registrar impounded the same and forwarded to the Collector who held that it was liable to be stamp duty under Article 35(c)(ii) of the Indian Stamp Act and determined the deficiency at Rs,765 and also imposed penalty of Rs,1,580. In this case the lease was for a term of five years from the date of occupation with monthly rent of Rs,700. The lease deed was submitted on Rs,85 stamp paper. Ultimately the matter was referred to the High Court under section 57 of the Stamp Act. The High Court held as under:- ' "In this case the instrument of demise fixed the monthly rent. The lessee is required to pay Rs,25,500 on account of rent for thirty-six months. This liability of the lessee is, therefore, to pay rent and not advance in addition to rent reserved. An amount for which there is both a liability and a covenant to pay as rent cannot be termed as advance. It cannot in the circumstances be said that this is a case of granting a lease for money advanced in addition to rent reserved. The legal character of Rs,25,500 is rent and merely because that rent is paid in advance under a covenant its character does not change."
' In this judgment the learned Judges have also noted the judgment reported as (1854) ILR 7 Madras 203 wherein it was held that one year rent deposited with the lessor could not be regarded as fine or premium. The words 'money advanced' in additon to rent 'reserved' are very conspicuous, therefore, these are altogether too different items and cannot read as one. It is pertinent to mention here that legislature by dividing Article 35 into clauses (a)(b)(c) has covered all possible species of lease deeds.
8. The cases relied upon by the learned Additional Advocate-General are not attracted because in those cases the question was whether two amounts paid construed rent reserved under the lease or they were to be construed fine or premium or money advanced and not rent was reserved under the lease. It was held that the document in question was covered by Article 35(a)(iii) because the amounts were paid before the execution of the lease deed without any legal liability.
9. The upshot of this discussion is that the writ petition is accepted with no order as to costs. The result is that the impugned orders of both the respondents are set aside being illegal and it is declared that lease deed submitted by the petitioner for registration before respondent No,2 was legally and correctly assessed under Article 35(a)(ii) of the Stamp Act, 1899 and consequence thereof respondent No,2 is directed to register the same.