' This judgment will dispose of fifteen Constitutional petitions, namely Writ Petitions Nos. 89 of 1986, 189 of 1986, 229 of 1986, 263 of 1986, 304 of 1986, 397 of 1986, 550 of 1986, 44 of 1987, 249 of 1987, 63 of 1988, 402 of 1988, 589 of 1988; 206 of 1994, 863 of 1994 and 416 of 1995 involving common questions of law and facts.
2. Briefly, these petitions as detailed below relate to various deeds of sale and gifts which were impounded by the Sub-Registrars or other registering authorities after those were duly registered on the ground that the properties involved in these transactions were under-valued to avoid the payment of requisite stamp duty under the law:--
(1) Writ Petition No,89 of 1986 Khurshid Begum v. Sub-Registrar and 2 others.
' By a sale-deed registered on 6-11-1985, the petitioner purchased lease-hold rights in a house. The sale-deed was, however, impounded under section 33 of the Stamp Act, on the same date (6-11- 1925) under the orders of the Sub-Registrar (Urban), Rawalpindi, for contravention of section 27 of the said Act and for initiating proceedings under section 64 thereof.
(2) Writ Petition No,189 of 1986 Sh. Muhammad Shafique and another v. Sub-Registrar and others.
' The petitioners purchased a bungalow through a registered deed which was initially registered by the Sub-Resigrar on 13-8-1985, but was impounded immediately thereafter by an identical order as in Writ Petition No,89 of 1986.
(3) Writ Petition No,229 of 1986 Naseer Ahmad and another v. Collector, Rawalpindi and another.
' In this case, petitioner No,2 gifted his share in the ancestral shop to his brother, the petitioner No,1 through a deed which was registered on 14-9-1985, but later on by order of the Collector, dated 18- 2-1986, was impounded. The petitioners were accordingly directed to pay the deficient stamp duty alongwith the penalty equal to the amount of stamp duty.
(4) Writ Petition No,263 of 1986 Muhammad Habib-ur-Rehman v. District Collector and another.
' Garrage to his son through a deed which was registered on 26-2-1986. A receipt was issued for delivery of the registered deed, but the same time it was impounded by the Sub-Registrar under section 33 of the Stamp Act on the ground that the actual value of the property was higher than the declared one. The property was later on got assessed from the Excise & Taxation Officer and on the basis of his assessm ent at Rs,3,75,000. The petitioner was accordingly directed by the District Collector by his order, dated 14-5-1986 for payment of the deficient stamp duty alongwith penalty equal to the amount of stamp duty under the provisions of section 40 of the Stamp Act, 1899.
(5) Writ Petition No,304 of 1986 Messrs Woodcraft Industries v. Deputy Commissioner, Islamabad.
' Pursuance to allotment of an industrial plot, an agreement was executed between the C.D.A. And the petitioner, the said agreement was registered on payment of stamp duty of Rs,5 on 9-3-1986.
The deed of agreement was, however, impounded under sections 33 and 38 of the Stamp Act and thereafter on 21-5-1986, the petitioner was directed to pay the deficient stamp duty alongwith penalty equal to five times the stamp duty, on failure to make payment of deficient stamp duty within thirty days.
(6) Writ Petition No,397 of 1986 Alliance Textile Mills Ltd., Jhelum v. Member Board of Revenue and others.
' The petitioners purchased Fauji Textile Mills Ltd. Through a registered sale-deed, dated 5-1-1986.
The sale-deed was, however, not delivered to the petitioner and was impounded on the ground that the property was under-valued. Later on the Collector, Jhelum, made a reference to the Member Board of Revenue who determined the value of the property at 7,50,00,000 against the valuation made by the Collector/Deputy Commissioner at Rs,14,43,20,754. A review petition filed before the Member Board of Revenue was also turned down on 27-7-1986.
(7) Writ Petition No,550 of 1986 Dost Muhammad v. Province of the Punjab and two others.
' In this case the petitioner had transferred a house situated in village Seham to his son through a gift deed which was duly registered by the Sub-Registrar (Urban) Rawalpindi, on 8-12-1985. The value of the property was, however, fixed by the Collector at Rs,3,59,000 as against the value fixed by the petitioner at Rs,1,30,000. The petitioner later on came to know that the gift deed was impounded immediately after its registration for initiating proceedings under sections 64, 27 and 40 of the Stamp Act, 1899.
(8) Writ Petition No,44 of 1987 Raja Ali Akbar, v. The Collector Rawalpindi etc. ' In the instant case, the petitioner purchased a shop for consideration of Rs,25,000. The sale-deed was registered on the 6th June, 1985, but the said document was later on impounded and the petitioner was directed to deposit a sum of Rs,24,200 on the ground that the value entered in the sale-deed was incorrect.
(9) Writ Petition No,249 of 1987 Khalil Ahmad Jalil v. Deputy Commissioner/Collector and another.
' In this case, the petitioner had sold land measuring 10 Marlas and 16 sq.Ft. Through a sale-deed which was duly registered by Sub-Registrar (Urban) Rawalpindi, vide Registration No,5886/1 on 4- 6-1985. Later on after notice the petitioner was required to deposit a sum of Rs,68,750 as penalty being eight times of the amount of proper stamp duty in addition to Rs,7,150 being the deficient stamp duty paid by them. The recovery of the said amount was required to be recovered by order of the Collector, dated 14-9-1985, as arrears of land revenue.
(10) Writ Petition No,63 of 1988 Khawaja Abdul Rehman v. District Collector, etc. ' The petitioner in the instant case sold land measuring 19 Marlas through sale-deed which registered on 3-6-1985 by the Sub-Registrar (Urban), Rawalpindi, vide his Office No,5851. Later on, it transpired that the sale-deed was impounded under section 33 of the Stamp Act, 1899, allegedly being under valued. Consequently, the Collector, Rawalpindi, by his order, dated 14-9-1985, directed the petitioner for deposit of Rs,10,340 as deficient amount of stamp duty alongwith Rs,37,620 as penalty being three times the amount of proper stamp duty.
(11) Writ Petition No,402 of 1988 Tasneem Kausar v. Collector, Rawalpindi.
' The petitioner purchased a house in Mohallah Kartar Pura, Rawalpindi, for a sum of Rs,2,25,000. The sale-deed in respect of the house was registered by the Sub-Registrar, Rawalpindi, which was duly entered in Book-I, Volume 69, page 181, at serial number 4842 on 21-5-1988. Immediately after the registration of the sale-deed the same was impounded on the ground of under valuing the property.
(12) Writ Petition No,589 of 1988 Capt. Fawad Raja and others v. Rai Muhammad Yar Khan and another ' The petitioner in the case purchased a land measuring 56 Kanals 4 Marlas from respondent No,2 for a sum of Rs,10,00,000. After completion of the formalities, Sub-Registrar, Rawalpindi, registered the sale-deed on 27-2-1988. By his order, dated 29-10-1988, the Collector impounded the sale- deed directing the petitioner for deposit of Rs,6,48,097 being the deficient amount of duty paid by the petitioner alongwith one time penalty equal to the amount of sale price within a period of 15 days.
(13) Writ Petition No,206 of 1994 Fauji Foundation v. Collector, Rawalpindi.
' The petitioner's Foundation purchased a bungalow at Westridge-I, Rawalpindi, for a sum of Rs,73,00,000 through a sale-deed which was registered on 31-5-1993. The sale-deed is stated to have been impounded being deficient in payment of stamp duty.
(14) Writ Petition No,863 of 1994 Shaukat Ali and another v. Sub-Registrar Murree and others.
' The petitioner purchased land measuring 1 Kanal at Pindi Point Murree on 6-6-1994 on which date the sale-deed was duly registered, but immediately thereafter it was impounded being under- valued.
(15) Writ Petition No,416 of 1995 Ghulam Abbas v. District Collector and another.
' In this case, one Mst. Imtiaz, Begum, General Attorney of Muhammad lqbal, made a gift of land measuring 8 Kanals, 11 Marlas and 5 Sarsahi on 5-1-1995. The gift deed was also registered on 5-1- 1995. Later on, she was informed that the gift deed stood impounded by order of Collector Rawalpindi, dated 8-3-1995 being deficient in payment of proper stamp duty.
3. The petitioners in all the aforesaid Constitutional petitions have assailed the orders impounding the sale/gift deeds mainly on the ground that after registration of these deeds the registration authorities become functus officio and thereby such documents cannot be impounded. It was thus, claimed that any inquiry into the valuation of the property being the subject matters of these deeds could only be made prior to the registration of the gift/sale-deeds but not thereafter. In two of the petitions, namely Writ Petition No,249 of 1987 and Writ Petition No,63 of 1988, it was also urged that under the law the payment of the stamp duty is the liability of the vendees/donees and for payment of any deficient amount of stamp duty the vendors/donors cannot be compelled for payment of the deficient amount of stamp duty.
4. The petitions were opposed on behalf of the Collectors and Sub- Registrars claiming that the power to impound the documents having been paid in deficient amount of stamp duty could be impounded under the provisions of Section 33 of the Stamps Act, 1899. Malik Muhammad Kabir, the learned Assistant Advocate-General, who represented the Collectors and Sub-Registrars opposing these petitions, very emphatically contended that by amendment of Article 23 of the Schedule I to the Stamp Act, 1899, by virtue of Punjab Finance Act, 1975 (XL of 1975), the rates of the payment of stamp duty on sales and gifts were modified and thereby stamp duty at enhanced rates could be charged and for non-be impounded even subsequent to registration of these documents in accordance with the Punjab Registration Rules, 1929.: The learned A.A.-G. Also referred section 27-A of the Stamp Act, 1899, which was added under the Finance Act, 1992, whereunder the under- valued gift-deeds could be impounded pursuant to section 33 of the Stamp Act.
5. Section 27 of the Stamp Act, 1899, requires that the consideration, if any, and all other facts and circumstances affecting the chargeability of any instrument with duty or the amount of duty with which it is chargeable should be fully set forth therein. The provisions of this section thus, make jt obligatory for the parties to make a true or full disclosure of all facts and circumstances having any bearing on the duty payable. Although the valuation and estimation of the duty payable is the value of the property which is taken from the face of documents failing which they have to suffer the consequences of making false statements.
6. Mian Inamul Haq, Advocate, the learned counsel representing the petitioners in Writ Petitions Nos.89, 189, 263 and 550 of 1986 contended that the Provincial Law Ministry had also endorsed this view whereafter section 27-A which is read as under was inserted in Stamp Act, 1899, by virtue of the Finance Act, 1986:- "(27-A) Valuation of urban land.--- (1) Where any instrument chargeable with ad valorem duty under sub-Article (b) of Article 23 or sub-Article (b) of Article 31 or sub-Article (b) of Article 33 of Schedule I, relates to land only or land with any building or structure thereon, the value of the land shall be calculated according to the valuation table notified by the Collector in respect of the land situated in the area or locality concerned.
(2) Where an instrument, mentioned in subsection (1), relates to land with building or structure thereon, it shall state the value of the land and the building or structure separately and the value of the building or structure so stated shall, subject to the provisions contained in this Act, be accepted.
(3) Where the value of land stated in an instrument to which subsection (1) applies is more than the value fixed according to the valuation table, the value declared in the instrument shall be accepted as value for the purposes of duty.
(4) Where the value given in the valuation table notified under subsection (1), when applies to any land, appears to be excessive, the Commissioner may, on application made to him by the aggrieved person, determine its correct value and for that purpose the provisions of section 31 and section 32 shall apply mutatis mutandis."
7. Under the provisions of subsection (1) of section 27-A of the Stamp Act, 1899, the Collector of the District is authorised to fix by a notification the market value of the land or land with any construction raised thereon for the purpose of payment of stamp duty. Such notification should be published in Official Gazette or in a manner to bring it in notice of general public. The application of section 27-A (ibid) is not restricted to as contended on behalf of the petitioner, in one of the writ petition, sale and exchange only. The expression ' conveyance referred to in Article 23 of Schedule I to the Stamp Act, 1899, also covers instruments relating gifts as defined in clause (10) of section 2 of the said Act. Further, the provisions of section 27-A (ibid) hiving been added on 14-6-1986 shall be effective from the said date onward. In Abdul Sattar v. Province of the Punjab and another 1995 CLC 187, it was held that the said section being riot retrospective would not apply to the transactions taking place before these coming into force. In Muhammad Aslam v. Sub-Registrar and others (1995 CLC 674, 'relying upon an earlier decision in Writ Petition No,3163 of 1992, it was laid down that where the valuation table is not published or conveyed to general public the stamp duty ad valorem cannot be charged unless such valuation table is notified under section 27-A of the Stamp Act, 1899. Similar view was taken in Mst. Sobia Hanif v The Collector (Deputy Commissioner) Lahore District, Lahore and 5 others 1983 CLC 2073. To sum up, by virtue of section 27-A of the Stamp Act, 1899, the registration authorities can insist for charging of ad valorem duty on instruments relating to transactions of land or land with construction raised thereon, whether for sale, exchange or gift, in accordance with the rates specified in the valuation table duly notified by the Collector on or after 14-6-1986 when the said section was added. In fact, by insertion of section 27-A (ibid) the discretion of parties fixing the valuation of property for the purpose of payment of stamp duty has been done away, provided the valuation table determining the value of the properties is duly notified by the Collector thereunder.
8. In the present petitions, however, the main question involved is that where an instrument requiring registration is registered, whether such instrument can be impounded under the provisions of section 33 of the Stamp Act, 1899, when the instrument is found deficient in payment of stamp duty. For facility of reference, subsection (1) of section 33 (ibid) is reproduced below: "33(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same."
9. Learned Assistant Advocate-General, was of the view that in this respect no distinction can be made. The moment any instrument is presented before any authority, in the present case, the Sub- Registrar, Registrar or Collector, and that authority comes to the conclusion that if was not properly stamped, such authority is duty bound to impound the same till the requisite stamp duty and penalty, if any, is paid. It was, thus, contended that mere registration of an instrument not duly stamped does not render the registration as invalid. Such instrument is released immediately on payment of deficient stamp duty and thereafter, it also becomes admissible in evidence.
10. In the present petitions all instruments, whether for sale or gift, required, registration. In fact all these documents were presented for registration and were duly registered. It was only immediately after registration or after some time that the concerned authorities came to the conclusion that the properties in respect of which the documents were registered were not properly valued for the purpose of stamp duty and were accordingly impounded till payment of requisite stamp duty. In Thakar Das and others v. The Crown AIR 1932 Lah. 495, it was held that under section 33 of the Stamp Act, 1899, it is essential that it should be produced or come before him "in the performance of his functions" and a mere production in compliance with an illegal demand will not confer authority on him to take action under section 33. In Komal Chand and another v. The State of Madhya Pradesh AIR 1966 Madh. Pra. 20, the majority view of the High Court was that after registration of the "Takseemnama" on 31st October, 1956, the registering authority had no power to hold an enquiry regarding the value of the property covered by the deed and call upon the executant to pay the deficit stamp duty. In Mst. Anwar Sultan v. The Collector, Lahore PLD 1964 W.P.
(Rev.) 49, it was held that Sub-Registrar was not competent to order production of documents already registered.
11. It is clear from the aforesaid precedents that after a document requiring registration is duly registered in accordance with law, the registering authority cannot impound such documents for being insufficiently Stamped by under valuing the properties in respect of which a deed was registered. In the present petitions the documents were duly registered notwithstanding that the property involved in the transaction was undervalued or not, the registering authority had finalized his function by registration of the documents. He may not become functus officio as he could still address to the Collector for initiating any action under section 64 of the Stamp Act, 1899, if any party had fraudulently under valued the property, but certainly he cannot recall the registration. In the present transactions deeds were duly registered after complying with all the formalities but they were intentionally not delivered to the concerned authorities or executants so as to cause their impounding. In this respect, it was not a proper production of the documents in accordance with law nor those had come before him in performance of his functions. Reference in this connection can also be made to the. Punjab Registration Rules, 1929, which provide procedure for presentation and registration of documents. Rule 112 of the said Rules, empowers the registering officer to examine a document if it is duly stamped or not. The said rule provides that it is an obligation imposed by law which must take precedent on all other procedures. Rule 139 of the aforesaid Rules further provides that 'the fact that a document is not duly stamped under the Stamp Act, 1899, is not of itself a sufficient reason for recording an order refusing to register it. The proper course is for the Registering Officer to impound the document and send it to the Collector, as prescribed in that Act: if the document is received back from the Collector, cured of the defect of stamp and it is otherwise admissible the Registering Officer shall register it. If, however, the executant of document, who is in doubt as to the proper stamp to be affixed, consult a Registering Officer on the subject before formal presentation, the required information may be given to him without impounding the document". In the instant cases, it appears that registering officers had not examined the documents presented to them for registration for the purpose of stamp duty, in accordance with the Rules on the subject, whether intentionally or unintentionally. But obviously, for their own omission, the parties or the executant cannot be made to suffer.
12. In Writ Petition No,249 of 1997 and Writ Petition No,63 of 1988 a plea was raised by the petitioners that they were vendors but are being made to pay the deficient stamp duty on a registered document of sale, although under section 29 of the Stamp Act, 1899, such duty is payable by the vendee. At this stage, any interference by this Court in that matter is not called for as an alternate remedy is available by approaching Chief Revenue Authority. In view thereof, the petitioners may, in the first instance apply to the Collector for seeking decision of the Chief Revenue Authority on their representation under section 56 of the said Act for the desired relief.
13. In view of the foregoing discussion, the action of the registering authority impounding the documents after registration thereof is held to be illegal and without lawful authority. The registered documents may be released to the concerned parties forthwith. The petitions are allowed accordingly without any order as to costs.