SAYED NAJAM-UL-HASSAN KAZM1, J.- This revision brings under challenge, judgments of the Courts below, by which, the suit of the petitioner for recovery of Rs. 6250/- was dismissed.
2. Land measuring 3 kanals was sold by Muzaffar Ahmad son of Sh. Mahmood in favour of Dr. Muhammad Younas son of Hafiz Muhammad Younas, on 6.6.1978. At the time of sale, all the dues, including Zila Council fee was paid on the sale-deed.
3. Talib Hussain, petitioner herein, filed a suit, to pre-emption this sale, which was decreed on 29.4.1982. In execution, warrants of possession were issued, the respondents demanded Rs. 6250/- as District Council fee. On the attestation of mutation in favour of the petitioner, by virtue of decree for pre-empt amount was paid under protest.
4. Later the petitioner filed the suit, out of which, this revision has arisen, to recovery the amount of Rs. 6250/-, which was realised by the respondent as District Council fee on the mutation attested in his favour, in terms of the decree for possession through pre-emption. The claim of the petitioner is, that the right of pre-emptor is a right of substitution which does not involve element of fresh transfer, and, therefore, no ground had arisen for the charging of District Council fee, particularly when on the original sale, District Council fee had been charged.
5. The suit was dismissed by the learned Civil Judge on 20.6.1983. Appeal filed by the petitioner which also ended in dismissal on 25.7.1984. The to judgments are now seriously challenged in this revision.
6. Learned counsel for the petitioner, submitted, that the petitioner did not purchase any land nor any transfer had been effected in his favour and, therefore, the respondents were not justified in compelling the petitioner to pay the amount question which having been recovered under coercion is liable to be refunded, in the alternative,, it was argued, that the fee would be payable by the transferor and could not be recovered from the petitioner who was just stepping into the shoes of the vendee.
7. Learned Assistant Advocate-General on the other had, argued, that the fee was rightfully charged and that the decree of pre-emption should be treated a decree for transfer of property.
8. The sole point for consideration, in this case is, as to whether, the respondent could demand payment of District Council fee on the attestation of mutation based on decree for pre-emption.
Rule 3 of Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, contemplates that a Local Council may or where the Government so directs shall levy a tax on the transfer of immovable property situated within its limits. The rate of 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. The transfer of immovable property has been defined in Rule 2(e) which provides, that the transfer of immovable property would mean the conveyance of proprietary right of any immovable property from one person to another.
9. Admittedly, in this case, no sale or transfer has taken place. The preemptor simply stepped into the shoes of the vendee as on the basis of the right of substitution. There was no fresh transfer but in fact, the sale was pre-empted, on the ground, that the petitioner had the superior right. The right,having been acknowledged by the Court, the petitioner was ordered to be substituted. On payment of the amount, the pre-emptor, by virtue of Order 20, Rule 14 of CPC, becomes automatically owner of the property without any intervening sale-deed or deed of conveyance.
10. It is also not disputed, that at the time of sale, which was pre-empted, District Council fee was charged. This being so, the respondents could not be allowed to make double levy, on one transaction.
11. There is a force in the submission of learned counsel for the petitioner, that Under Rule 5 of Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, the liability to pay tax was upon the transferor of the property, unless otherwise mutually agreed to between the transferor and the transferee in writing. Even if, it is assumed that there was some element of transfer involved, the petitioner being the pre-emptor and transferee, as per allegation of the respondents, could not be made liable for the payment of this amount which could be recovered from the transferor who, according to the respondents, would be the defendant in the suit. On this principle also, the recovery of District Council fee from the petitioner was not permissible.
12. For the reasons above, it is held, that in the first instance, no tax was payable, on the attestation of mutation based on decree for pre-emption as it did not involve element of transfer and secondly, the amount could not be recovered from the petitioner as he was not the transferor within the meaning of Rule 5 ibid. The amount having been illegally charged and recovered from the petitioner, he is entitled to the refund thereof.
13. The findings recorded by the to Courts below being contradictory to the law and suffering from perversity of reasoning, cannot sustain.
14. Resultantly this revision is allowed, the impugned judgments are set aside and the suit of the petitioner is decreed.