HASEEB RAZA KHAN VS SUB-REGISTRAR, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 1064 (2017)

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional jurisdiction of High Court could not be exercised for the purpose of examining a factual controversy---Constitutional jurisdiction in matters of factual controversy was barred---Law did not permit the High Court for recording evidence in Constitutional jurisdiction.

Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023; Pervez Alam v. Pakistan Dairy Products (Pvt.), Limited, Karachi and 2 others 2005 PLC SC 366 and Abdur Rahman and 5 others v. Rifatullah and 8 others 2016 CLC 35 ref.

(b) Punjab Finance Act (VI of 2010)---

---S. 6(5)---Capital Value Tax (CVT)---Scope---For purposes of execution of sale deed Appellant presented sale deed before the Sub-Registrar for execution, however Registrar refused to register the same on ground of insufficient stamp duty---Appellant re-submitted documents before the Sub-Registrar, however by that time Capital Value Tax (CVT) was applicable on sale of property---Appellant contended that he was not bound to pay Capital Value Tax (CVT) as he had submitted documents before the enforcement of CVT, and it was only because of objection by the Registrar that he had to re-submit the documents---Validity---Section 6(5) of the Punjab Finance Act, 2010 provided that CVT had to be collected by the concerned person at the time of registering or attesting the transfer---Admittedly, the appellant has re-submitted documents for registering on 07-07-2010 after complying with all laws, when the Punjab Finance Act, 2010 was in force, and CVT was imposed through the same---Sub-Registrar was, thus, justified in collecting 2% CVT from the appellant, under the Punjab Finance Act, 2010---Intra-court appeal was dismissed accordingly.

City District Government, Karachi v. Muhammad Irfan and others 2010 SCMR 1186 and Farman Ali and others v. The State PLD 2007 Lah. 495 distinguished.

District Officer (Revenue) Lahore and others v. Raja Muhammad Yousaf and others 2016 SCMR 203 ref.

Muhammad Irfan Khan Ghazanvi for Petitioner.

Sultan Mahmood, Assistant Advocate General.

ORDER

Through this Intra Court Appeal, the Appellant has called in question judgment dated 11.10.2010 which subsequently was announced on 29.11.2010 (the "Impugned Judgment"), passed by learned Single Judge in Chamber, whereby constitutional petition filed by the Appellant was dismissed.

2.Facts briefly for the disposal of this Intra Court Appeal are that the Appellant purchased property measuring 10-marlas, comprising khasra No.774/81, Khatooni No.619, Khewat No.290, situated at Hadbast Mouza, Jogeenpura, Tehsil Cantt, formerly bearing property No.101-A, Bock-D, situated at Campus View Town, Lahore, but presently bearing House No.699-A/F-II Johar Town, Lahore (the "Property"), for total consideration of Rs.17,00,000/-. For the purpose of execution of the sale deed in respect of the Property, the stamp paper valuing Rs.34,000/- @ 2% of the said value was purchased on 03.06.2010 and the same after its completion was presented before the Respondent No.1 on 07.06.2010 on the understanding that the Property falls under Mouza Jogeenpura. After completing the documents from Local Commission, the same were resubmitted on 30.06.2010. Whereupon Respondent No.1 refused to register the same on the ground of insufficient stamp duty by applying the rate of Johar Town and not Mouza Jogeenpura. Therefore, the Appellant paid the stamp duty under protest at the rate of Johar Town, and presented before the Respondent on 07.07.2010. However, the Respondent again refused to register the sale deed with another objection that CVT is applicable on sale of the Property after coming into force of the Punjab Finance Act, 2010 (the "2010 Act"), having effect from 01.07.2010.

3.Learned counsel for the Appellant has argued that the Property is situated in Mouza Jogeenpura, and the Respondents cannot charge the stamp duty at the rate of Johar Town Scheme. Similarly, the Appellant contended that he has submitted documents much prior to enforcement of the 2010 Act, hence, demand of payment of CVT by the Respondents is also unlawful and illegal. He stated that the learned Single Judge in Chamber has dismissed the writ petition without application of his independent mind and law laid down in an authoritative judgment of this Hon'ble Court titled Farman Ali and others v. The State (PLD 2007 Lahore 495), which is fully applicable to the facts and circumstances of the instant case. He further argued that judgments relied upon by learned Single Judge in Chamber i.e. Messrs Mehran Associates Limited v. The Commissioner of Income-Tax, Karachi (1993 SCMR 274), and City District Government, Karachi v. Muhammad Irfan and others (2010 SCMR 1186), were initially relied upon apart from Farman Ali ibid case, which is basic judgment upon the matter in issue.

4.On the other hand, learned Law Officer has supported the impugned judgment and requested for dismissal of the Intra Court Appeal. He stated that after affixing the deficient stamp duty, the Appellant resubmitted the documents for registration on 7.7.2010 after coming into force of Punjab Finance Act, 2010, hence the Appellant was required to pay CVT @ 2%. The counsel of the Respondent relied on the judgment titled District Officer (Revenue) Lahore and others v. Raja Muhammad Yousaf and others (2016 SCMR 203) to support his contention.

5.Arguments heard and record perused.

6.Before rendering any decision on instant Intra Court Appeal and examining the arguments urged by the parties, following moot points are essential for consideration and determination by this Division Bench, arising out of this Intra Court Appeal:

a)Whether the Property of the Appellant fall under the scheme of Johar Town or Mouza Jogeenpura, upon which the stamp duty would be applicable and determined?

b)Whether CVT is payable by the Appellant in respect of the Property, provided that the Appellant re-submitted documents after enforcement of the Punjab Finance Act, 2010?

7.For determination of the first moot point, it is essential to note from the record that the Appellant has himself mentioned two addresses of the same Property in the Sale Deed, and for the purpose of avoiding the higher rate of stamp duty of Johar Town, the Appellant is pressing that the Property falls in Mouza Jogeenpura. However, to effectively dilate upon this question, it is essential to examine the record and to call for evidence on this specific issue to resolve the present factual controversy. However, it is pertinent to note that the constitutional jurisdiction of High Court could not be exercised for the purpose of examining factual controversy, which has to be adjudicated upon by the competent authority under the law. The scope of Article 199 of the Constitution of Pakistan, 1973 (the "Constitution") is dependent on the questions which are devoid of factual controversy and writ jurisdiction in matters of factual controversy is barred. The reliance can be placed on Amir Jamal and others v. Malik Zahoor-ul-Haq and others (2011 SCMR 1023) and Pervez Alam v. Pakistan Dairy Products (Pvt.), Limited, Karachi and 2 others (2005 PLC SC 366).

8.Further, in the case of Abdur Rahman and 5 others v. Rifatullah and 8 others (2016 CLC 35) [Peshawar]), the Division Bench of the High Court has clearly held in para 6 that:--

"6. It is settled by now up to the august Supreme Court of Pakistan that factual controversy cannot be gone into in a Constitutional jurisdiction of the High Court and it is the prerogative and privilege of the Civil Court to examine the disputed question of fact undertaken in the Constitutional jurisdiction of this Court. The superior Courts should not involve themselves into investigation of disputed questions of facts, which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit and that can only be determined by Courts having plenary jurisdiction in the matter. In such an eventuality Constitutional petition is incompetent. In this regard, reliance is placed on Khairuddin v. Settlement Commissioner (1988 SCMR 988), Colonel Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), Muhammad Asghar v. The State (PLD 2006 SC 326), Faiz Bukhsh and others v. Deputy Commissioner/LAC and others (2006 SCMR 219) and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813)."

9.In the instant case, this Court agrees with the decision rendered in the Impugned Judgment on the first moot point, which can only be determined by recording evidence of the parties, and the law does not permit to a High Court for recording evidence in writ jurisdiction. When there is a factual controversy between the parties, the learned High Court abstains to exercise its jurisdiction under Article 199 of the Constitution.

10.For the purpose of rendering decision on second moot point, section 6(5) of the 2010 Act is applicable law, and is reproduced as follows:--

"The tax shall be collected by the person responsible for registering or attesting the transfer of the immovable property in respect of which the tax is payable, at the time of registering or attesting the transfer."

It is clear from the above mentioned section that tax has to be collected by the concerned person at the time of registering or attesting the transfer. Admittedly, the Appellant has re-submitted documents for registering on 07.07.2010 after complying with all laws, when the 2010 Act was in force, and CVT was imposed through the same. Therefore, the Appellants submitted documents before the concerned person responsible for registering or attesting the said aid transfer of immovable property after coming into force, of the 2010 Act, and the Respondents are justified in collecting 2% CVT from the Appellant, under the Act, 2010.

11.The Appellant has relied on the case titled Messrs Mehran Associates Limited v. The Commissioner of Income-Tax, Karachi (1993 SCMR 274), in which it was held at Para 12 that "the cardinal principles of interpretation of a fiscal statute seem to be that all charges upon the subject are to be imposed by clear and unambiguous words. There is no room for any intendment nor there is any equity or presumption as to a tax. A fiscal provision of a statute is to be construed liberally in favour of the tax-payer and in case of any substantial doubt the same is to be resolved in favour of the citizen." However, it is to be noted in the instant case that section 6(5) of the 2010 Act is clear and not ambiguous, and the same clearly highlights that the tax shall be collected at the time of registering the transfer.

12.Similarly, the Appellant has also relied on the case titled City District Government, Karachi v. Muhammad Irfan and others (2010 SCMR 1186), in which it was held that, rights of parties would be governed/decided as per law prevailing at the time when cause of action had accrued, particularly in the matters pertaining to fiscal disputes) unless manifestly intention of law was otherwise. Instrument dealing with fiscal matters was to be construed strictly because it imposed burden in terms of money upon the person who claimed relief under said law. Therefore, in view of the above referred case law, it is to be noted that cause of action for the second moot point occurred when the Appellant re-submitted his documents again on 7.7.2010 and the Respondent refused to accept the same without payment of CVT @ 2% after enactment of the 2010 Act. Therefore, in stricto senso, the Appellant is liable to pay CVT under the terms.

13.Moreover, it has been held in the case of District Officer (Revenue) Lahore and others v. Raja Muhammad Yousaf and others (2016 SCMR 203) at Para 12 that the registration officer is only concerned with determining the applicable stamp duty on the date when the document is presented for registration.

14.The judgment titled Farman Ali and others v. The State (PLD 2007 Lahore 495) may be distinguished being the murder reference.

15.In view of the above mentioned discussion, law and the case laws, this Court agrees with the decision of the learned Single Judge in Chamber in deciding that no illegality has been pointed out by the learned counsel of the Appellant/Petitioner for payment of CVT @ 2% for transfer of the Property.

16.In view of the above, this Intra Court Appeal being devoid of merits, is hereby dismissed.

MWA/H-2/L Appeal dismissed.