AMJAD ALI, J.--- This judgment will dispose of fifteen Constitutional petitions, namely Writ Petitions Nos. 89 of 1986, 189 of 1986, 229 of 1986', 2673 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 undervalued to avoid the payment of requisite stamp duty under the law:-
(1) Writ Petition No. 89 of 1986.
(Khurshid Begum Vs. 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 (6.1.1.1985) 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 Vs. Sub-Registrar and others).
The petitioners purchased a bungalow through a registered deed which was initially registered by the Sub-Registrar 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 Vs. Collector, ?Rawalpindi and another).
(4) Writ Petition No 263 of 1986.
(Muhammad Habib-ur-Rehman Vs. District Collector and another). garrape 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 and 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.
(M/s. Woodcraft Industries Vs. Deputy Commissioner. Islamabad).
Pursuant to allotment of an industrial plot, an agreement was executed between the CDA and the petitioner, the said agreement was registered on payment of stamp duty of Rs.5/-, o n 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 Vs. 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 Rs.
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. Vs. Province of the Punjab and two others).
(8) Writ Petition No. 44 of 1987.
(Raja A.I Akbar Vs. The Collector Rawalpindi; etc.).
(9) Writ Petition No. 249 of 1987.
(Khalil Ahmad Jalil Vs. Deputy Commissioner/Collector and another).
(10) Writ Petition No. 63 of 1988.
(Khawaja Abdul Rehman Vs. District Collector, etc.).
The petitioner in the instant case sold land measuring 19 marlas through sale-deed which was 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.7,37,620/- as penalty being three times the amount of proper stamp duty.
(11) Writ Petition No. 402/1988.
(Tasneem Kausar Vs. Collector, Rawalpindi).
The petitioner purchased a house in Mohallah Kartar Para, 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' Vs. R.I 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 Vs. Collector, Rawalpindi).
The petitioner's Foundation purchased a bungalow at WastridgeI, 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) W.P. No. 863 of 1994.
(Shaukat A.I and another Vs. 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) W.P. No. 416 4.1995.
(Ghulam Abbas Vs. District Collector and another).
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 fundus officio and thereby such documents cannot be impounded. It was thus claimed that any inquiry into the valuation of the property being the subject-matter of 'these deeds -could only be made prior to the registration of the gift/sale-deeds but not thereafter. In two of the petitioners, 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 was 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-Registrar claiming that the power to impound the documents having been paid in different amount of stamp duty could be impounded under the provisions of Section 33 of the Stamp 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 AAG also referred to Section 27A 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 it 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 lnamul 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 27A 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 of 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 there in, 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 sub-section (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) Whether the value of land stated in an instrument to which sub-section (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 sub-section (1), when applied 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 sub-section (1) of Section 27A 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 27A ibid is not restricted to, as contended on behalf of the petitioners, 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 27A ibid having been added on 14.6.1986 shall be effective from the said date onward. In Abdul Sattar Vs. Province of the Punjab and another (1995 CLC 187), it was held that the said section being not retrospective would not apply to the transaction taking place before these coming into force. In Muhammad Aslam Vs. 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 tiable is not published or conveyed to general public, the stamp duty ad valorem cannot be charged Unless such valuation table is notified under Section 27A-of the Stam Act, 1899. Similar view was taken in Mst. Sobia Hanif Vs. The Collector (Deputy Commissioner) Lahore District, Lahore and 5 others (1983 CLC 2073). To sum up, by virtue of Section 27A 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 27A 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, sub-section (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 stamp, 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 sometime that the concerned authorities came to the conclusion that the properties in respect of which the documents were registered were not properly 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 Vs. The Crown (AIR. 1932 Lahore 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" a mere production in compliance with an illegal demand will not confer authority on him to take action under S. 33." In Komal Chand and another Vs. The State of Madhya Pradesh (AIR 1966 Madha Pradesh 20), the majority view of the High Court was that after registration of the "Takseemnama" on 31st October. 1956, the registering authority covered by the deed and call upon the executant to pay the deficit stamp duty. Inw Mst. Anwar Sultan Vs. 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 execution 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 provides procedure for presentation and registration of documents. Rule 112 of the said Rules, empowers the registration 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 ing 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 documents, 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 omissions, 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 his 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. .