MAULVI ANWARUL HAQ, J.----This I.-C. A. Proceeds against judgment dated 27-3-2000 of learned Single Judge, in Chamber of this Court, whereby Writ Petition No.2104 of 1999 filed by the appellant was dismissed.
2. Learned counsel for the appellant contends that the impugned judgment fails to take note of the express provisions of the Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981.
According to the learned counsel the said tax becomes payable only when the sale-deed is registered. Refers to the letters issued by the Provincial Privatisation Commission which do give the impression that the sale by auction was to be concluded by means of a registered document.
According to the learned counsel the document was registered on 18-10-1999 when the tax stood abolished and further contract of respondent No.5 came to end. Further contends that barring provisions of Order XXIII, rule 1, C.P.C. Were not applicable as the writ petition had been filed before the withdrawal of the suit. Learned counsel for the respondent No.5, on the other hand, insists that the writ petition was rightly held to be barred under Order XXIII, rule 1, C.P.C. According to the learned counsel the registration of the deed was not sine qua non for liability to pay, the said tax under the said rules. He further contends that since assessment of the tax has been challenged, an appeal was available and as such this I.-C.A. Is not competent. Learned counsel for respondent No.4 also adopts said arguments.
3. We have examined the records of the writ petition, with the assistance of the learned counsel for the parties. It appears that the property in question vests in the Provincial Government and was sold by means of a public auction conducted by the Punjab Privatization Board. The auction was held on 28-4-1998. The appellant was the highest bidder and his bid was accepted. The total amount offered was Rs.2,23,20,000. Admittedly the amount was paid as follows:-- Call deposit4,00,0000; 30-4-199840,00,000 2-5-199814,50,000 14-5-199858,50,000 19-6-199818,00,000 22-6-199888,20,000 Vide letter dated 13-7-1998 (Annexure 'B'). The P.P.B. Acknowledged the receipt of the entire amount and directed transfer of the property in the name of other persons mentioned therein as desired by the appellant. This letter was addressed to the Secretary (Colonies), Board of Revenue Punjab, Lahore. The said Secretary vide letter dated 5-11-1998 (Annexure 'C' to the writ petition) directed the Deputy Commissioner, Chakwal, to effect the transfer in favour of the said persons through a sale- deed to be stamped, executed and registered at their expenses including all payable taxes.
Pursuant to the said order the sale-deed was executed and registered by District Collector, Chakwal, on behalf of the Provincial Government in favour of other persons mentioned in para.4 of the said document (Annexure C/1 to the writ petition).
4. Now admittedly the contract for collection of the said tax was awarded to respondent No.5 by respondent No.4 for a period of one year i.e. 1-7-1998 to 30-6-1999. The said respondent filed an application before respondent No.4 stating that said transfer of immovable property tax is payable in respect of the said transaction and since the appellant is not paying the same, respondent No.4 should recover the same and pay to him. In the first instance the Administrator of respondent No.4 issued several notices to the appellant for said payment. The position taken by the appellant was that since the sale-deed has not been registered he is not liable to pay the tax. This position was accepted by Administrator who held accordingly and refused to proceed further in the matter of the said recovery. Respondent No.5 then approached the Commissioner, Rawalpindi Division, under the arbitration clause contained in the said agreement between respondent. No.4 on the one hand and respondent No.5 on the other. The Commissioner entered upon reference and vide award dated 26-6-1999 proceeded to declare that a sum of Rs.13,39,200 is liable to be paid as said tax and said amount shall be recovered by the District Collector, Chakwal, as arrear of land revenue.
The amount upon recovery to be deposited with respondent No.4 and thereafter the adjustment of the account shall be made with respondent No.5. The appellant then filed a civil suit. Vide order dated 17-9-1999 the learned Civil Judge while deciding the application for grant of temporary injunction proceeded to direct that respondent No.4 shall not interfere in execution and registration of the sale-deed in favour of the appellant by the said vendor and that he will be bound to pay the taxes and fees to respondent No.4 in accordance with relevant rules applicable at the time of registration. Respondent No.5 filed an appeal which was taken up on 22-9-1999 (this is the date noted on the copy of the order available as Annexure 'G' to the writ petition) by a learned A.D.J., Tallagang who proceeded to suspend the said order. Present writ petition was filed on 30-9-1999 in this Court. The factum of said suit was mentioned in paras.5 and 6 of the writ petition. The suit was later withdrawn. We may here note the prayer made in the writ petition:-- "It is, therefore, most respectfully prayed to allow the petition and may kindly set aside the impugned order dated 26-6-1999 and proceeding commenced by respondent No.3 for arrest of the petitioner and attachment of his property may also be declared to have been passed without lawful authority. "
5. Now coming to the said contention of the learned counsel. We may reproduce rule 4 of the said rule, which is as follows:-- "4. Assessm ent and collection of tax.---(1) Where an immovable property is transferred through a registered deed, the tax shall become due as soon ag the sale-deed is registered and may be assessed and collected by the Taxation Officer either directly or through the Registrar or Sub- Registrar concerned if so authorised by the Board of Revenue either by a general or special order.
(2) Where an immovable property is transferred orally and such transfer is allowed by a mutation in the Revenue Office, the tax shall become due as soon as the mutation is sanctioned and may be assessed and collected by the Taxation Officer either directly or through the Revenue Officer concerned if so authorised by the Board of Revenue either by a general or a special order,
(3) Where a transfer is not covered by sub-rule (1) or sub-rule (2), the tax shall become due as soon as the sale takes place and may be assessed and collected by the Taxation Officer of local council."
6. Now it will be seen that whereas reliance of the learned counsel for the appellant is on the said sub-rule (1), learned counsel for respondents Nos.4 and 5 are relying upon sub-rule (3). Now this involves determination of the question as to whether the sale is covered by sub-rule (1) i.e. It was concluded by means of registered sale-deed or it is not covered by sub-rule (1) or for the matter the said sub-rule (2).
7. We have already referred to the said letter of P.P.B. Above and then directions issued by the Secretary (Colonies) the said documents clearly give the impression that the sale was intended by the parties to be concluded by means of a registered document and in fact it was so concluded.
Now this being so, tax would become payable upon the registration of the deed. Now the date of registration is 18-10-1999. Now this has certain implications. We are told by all present that on the said date the said tax stood abolished. Further the contract of respondent No.5 came to an end on 30-6-1999. This being so, apart from the fact that the tax was not payable at all, respondent No.5 in any case was not entitled to recover the same aria consequently call upon respondent No.4 to recover the same for him.
8. Now if the matter is to be covered by the said sub-rule (3), as being insisted upon by learned counsel for respondents Nos.4 and 5 and as held by the Commissioner in his award dated 22-6- 1999, then it has to be seen as to when the sale took place. Now the Commissioner has not stated a word in his impugned award as to how according to him the sale has taken place and more particular as to when the sale took place.
9. Learned counsel for respondent No.5 relies upon section 54 of the Transfer of Property Act, to contend that under the law sale takes place when a transfer of immovable property in exchange for price paid or part paid and part promised. The said argument of the learned counsel clearly loses sight of subsection (2) of the said section 54 of the Transfer of Property Act, 1882, which makes it mandatory that a sale of immovable property of value exceeding Rs.100 can be made only by a registered instrument. There is no denial of the fact that property is located in an urban area, where said section 54 of the Transfer of Property Act, 1882, applies.
10. Notwithstanding the said flaw in the argument of the learned counsel, even if only subsection
(3) of section 54 of the Transfer of Property Act, 1882, is kept in view then the sale by all means stood completed on 28-4-1998 when price was part paid and part promised to be paid or for that matter on 22-6-1998 when price was completely paid. It is matter of record that on both said dates respondent No.5 was not awarded contract for collection of the said tax. His contract commenced on 1-7-1998 and as such he was not entitled to recover the said tax and consequently to call upon respondent No.4 to recover the same.
11. Now in the impugned judgment it has been held that the sale took place when the entire auction money was paid. Even going by this finding respondent No.5 had no lawful authority to recover the said tax and so was the case with respondent No.4 to act on his behalf to recover the same. The second reason for dismissing writ petition is the unconditional withdrawal of the said civil suit filed by the appellant. It is mentioned in the impugned judgment itself that the suit was withdrawn subsequent to the filing of the writ petition. This being so, the dictum of the Honourable Supreme Court in the case of Ghulam Nabi and another v. Seth Muhammad Yaqub and others PLD 1983 SC 344 would come into play. The writ petition cannot be said to be barred under Order 23, rule No. 1.
C.P.C. The concession made by the learned counsel for the appellant in the course of hearing of the writ petition on point of law would be of no avail.
12. Coming to the objection to the maintainability of this I.-C.A. Learned counsel insists that since the appellant has challenged the assessment of the tax, an appeal was competent and as such the L-C.A. Is not competent. Now under said rule 4 tax is to be assessed by the Taxation Officer and is to be collected by him. We find that in the first instance such assessment has not been challenged, what has been challenged is the said award of the Commissioner. In the second there is no assessm ent by the Taxation Officer which could be made subject-matter of an appeal under rule 8 of the said Rules. Incidentally the appeal lies to the Chairman. It is matter of record that said Chairman himself issued notices for recovery of tax and thereafter he himself formed the opinion that respondent No.5 was not the contractor on 28-4-1998, besides sale-deed has not been registered and as such the tax cannot be recovered (Annexure 'D'). There was thus no occasion for appellant to file an appeal when no assessment order has been passed by Taxation Officer against whose order the appeal is provided to the Chairman. We may note here that there is no plea and of course no such assessm ent order has been placed either on the record of writ petition or on the record of this L-C.A.
13. There is yet another aspect of the case. According to the contesting respondents, there was no arbitration clause in the agreement between them and under the said clause the matter was referred to the Commissioner who entered upon reference and made the said award dated 22-6- 1999. To our mind the award was subject to provisions of Arbitration Act, 1940 and was required to be filed in a competent Court for proceedings in accordance with section 14 and section 17 and also the incident of filing of objection in terms section 30 read with section 33 of the Arbitration Act, 1940. The award was to be implemented in terms of the orders of Court to be passed after complying with the said provisions of law.
14. For all that has been discussed above, we allow this I.-C.A. And consequently accept the writ petition filed by the appellant and declare the imposition and recovery of the said tax qua the sale in question pursuant to the said award of Commissioner dated 22-6-1999 to be without lawful authority and set aside the same. No order as to costs.