Brief facts out of which the present revision petition arises are that the petitioner submitted an application under section 17 of the Arbitration Act for making award the rule of the Court. The trial Court sent the award to the District Collector for levy of stamp duty etc. Before the document is admitted in evidence vide order, dated 30-7-1996, the Collector did not send report to the trial Court. Learned counsel for the parties requested the trial Court to decide the case itself without awaiting the report of the Collector vide order, dated 9-1-1997. Subsequently, the trial Court decided the case himself and directed the petitioner to make good the deficiency in stamp duty value of Rs.3,29,692 on or before 6-3-1998. Petitioner being aggrieved filed review petition before the trial Court who dismissed the same vide order, dated 8-2-1999. .
2. Learned counsel for petitioner stated that once the Court has adopted a specific procedure by invoking section 31 of the Stamp Act, it should have decided the case after receiving the report from the Collector. He further stated that consent of the learned counsel for the petitioner is not binding on the petitioner as the petitioner raised a question of law which is not hit by the principle of estoppel or waiver. He further stated that the trial Court has no jurisdiction even on the consent of the petitioner's counsel. He further stated that petitioner is exempted of levy of stamp duty by virtue of section 31, proviso (e). He further stated that respondent has no authority to challenge the levy on the ground that it is between the petitioner and the Court. He further stated that judgment of the trial Court is against the mandatory provisions of sections 32 and 35, proviso (e). Therefore, basic order, dated 6-2-1998 is not sustainable in the eyes of law.
3. Learned counsel for the respondents raised preliminary objections that revision of the petitioner is time-barred as the petitioner also challenged the original order, through this revision petition dated 6-2-1998 as the principle laid down by the Honourable Supreme Court in PLD 1970 SC 196. He further stated that petitioner is estopped to challenge the jurisdiction of the trial Court as the learned counsel for the petitioner has given consent before the trial Court to decide the case in accordance with the provisions of the Stamp Act himself without receiving the report of the Collector. He further stated that order of the trial Court is in accordance with the law laid down by the superior Courts and he relied upon PLD 1960 Lah. 211. He further stated that proviso of section 35 is not attracted as the award is submitted before the Court by the Arbitrator.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that the trial Court has referred the matter to the Collector vide order, dated 30-7-1996 for levy of stamp duty before the document is admitted in evidence. The Collector did not decide the same and sent back to the trial Court and the trial Court without awaiting the decision of the Collector passed the final order against the petitioner on 6-2- 1998. Subsequently the review petition was also dismissed vide order, dated 8-2-1999. It is settled proposition of law that nobody should be penalised by the act of the Court as the principle laid down by the Division Bench of this Court in PLD 1975 Lah.
7. It is also admitted fact that nobody should be penalised by the act of the public functionaries as the principle laid down by this Court in PLD 1994 Lah.
3. It is consistent view of the superior Courts that jurisdiction cannot be conferred by the consent of the parties against the provisions of law. I am fortified by the judgment of Honourable Supreme Court PLD 1996 SC 292. Therefore, principle of estoppel is not attracted in this case on the well-known principle that there is no estoppel against statute. I am fortified by the judgment of this Court PLD 1977 Lah. 588. It is also settled proposition of law that when the basic order is without lawful authority then the. Superstructure shall fall on the ground automatically as the principle laid down by the Division Bench of this Court in Sadiq Qureshi's case PLD 1982 Lah. 1 and PLD 1958. SC 104. The judgment of the trial Court dated 6-2-1998 is in violation of the mandatory provisions of the Stamp Act. Therefore, the learned trial Court should have reviewed his order as the same is passed in violation of law laid down by the superior Courts and mandatory provisions of the said Act.
5. In view of what has been discussed above, this revision petition is accepted and the trial Court is directed to decide the same after obtaining report from the Collector. He is directed to procure the report from the Collector preferably within one month and decide the same strictly in accordance with law without influenced by the aforesaid -observation of this Court. Parties are directed to appear before the trial Court on 21-12-1999.