2011 PLP 1961 (MLD)

UMAR ATA BANDIAL, J.

Learned counsel for the petitioner has read from the impugned orders dated 3-3-2011 and 1-4-2011 by the respondent No.1. These find Article 35(b)(i) of Schedule-I to the Stamp Act, 1899 ("Act") to be the relevant provision for determining the stamp duty payable on the registration of a lease deed for a period of two year executed by the petitioner lessor which contemplates advance payment of one year's annual rent by the tenant.

2. The relevant facts are that the petitioner's lease agreement reserves a monthly rent of Rs.3,40,000 and he received thereunder the advance payment of annual (12 months) rent calculated at the said rate. The impugned orders presume that the total amount of rent that is payable for the two year term of the lease to be 'money advanced'. Accordingly, the said orders have for the registration of the said lease dee levied stamp duty on the amount of two years rent under Article 35(b)(i) of Schedule-I to the Act. The said Article 35(b)(i) ibid is reproduced below:-- "Where the lease is granted for money advanced and where no rent is reserved. [Two per cent of the] consideration equal to the amount of such advance as set forth in the lease." It is contended that Article 35(b)(i) ibid describes a case where lease is granted for money advanced but not in consideration of payment of rent. The purpose of lease under the aforenoted Article is to create a kind of security for 'money advanced'; the latter term also connotes a financing transaction.

3. The impugned orders, however, presume annual "advance rent" paid in the present case as being "money advanced" equal to two years rent payable under the lease deed. Such a view is based on a wrong presumption of both law and fact. This Court in Citibank v. District Registration District Collector/Deputy Commissioner, Lahore and another (1999 MLD 110) has observed that Article 35(b)(i) ibid cannot be applicable to a lease agreement for rent because "no money was advanced."

4. To clarify the position, learned counsel for the petitioner has referred to Article 35(a)(ii) of Schedule to the Act. This makes provision in relation to a lease agreement for a fixed term in the following manner: "Where the lease purports to be for a term of not less than one year but not more than three years. [Two per cent of the] amount or value of the average annual rent reserved". It is the petitioner's case that the above said Article 35(a)(ii) is applicable to the subject matter lease agreement entered by him. He has accordingly deposited the amount chargeable thereunder. However, the impugned orders have assessed an additional amount of Rs. 98,944 as being payable as stamp duty for registration of petitioner's lease deed.

5. For non-deposit of the said additional amount claimed by the impugned orders the petitioner's lease deed was not registered by the respondent No.1. Accordingly, by an interim order dated 28-4-2011 this Court directed the registration of the petitioner's lease deed subject to deposit of impugned differential amount with the Deputy Registrar (Judl.) of this Court. That amount was duly deposited by the petitioner and the petitioner's lease deed was registered.

6. The question in issue is whether the amount lying in deposit is chargeable and payable on the registered lease deed of the petitioner under Schedule-1 to the Act or is refundable to the petitioner as claimed?

7. Learned Addl. A.G. has opposed the adjudication of this petition on the ground that the matter is sub judice before the Collector Lahore to whom the file has been referred by the respondent No.1, Sub-Registrar/DDO (Registration) on 1-4-2011. The petitioner has an adequate remedy before the Collector and is under a duty to exhaust the same before approaching this Court for relief. Submits that the petitioner has filed an appeal against the impugned orders which is also pending before the Collector Lahore as the appellate authority. Admittedly, however, no decision has yet been taken either in the reference or the appeal. On merits no cavil is taken to the petitioner's plea on the ground that the same shall be decided by the Collector.

8. Heard. There are two points arising for the consideration of the Court: firstly, whether the present petition is maintainable during the pendency of an appeal before the Collector? And if so, secondly, whether the finding given in the impugned orders is contrary to an express provision of law in a manner that is apparent on the face of record and requires no factual enquiry for the purposes of determination?

9. We shall first deal with the second question. The present petition involves fiscal liability to stamp duty payable on a lease deed having a term of two years whereas advance rent thereunder is payable for one year at a time. The respondent No.1 Sub-Registrar has interpreted the said agreement as involving an advance payment of rent for two years that is made in two installments. On that presumption he has treated rent for two years as being "money advanced" and subjected the same to stamp duty payable under Article 35(b)(i) of the Schedule to the Act. This treatment represents a travesty of fact as the lease deed neither contemplates advance payment of rent for two years nor intends the total rent to be paid thereunder to be money advanced to the petitioner. Only advance rent for one year has been paid to and received by the petitioner.

10. Therefore, even on the wrong presumption that the one year's advance rent paid to the petitioner is 'money advanced', the petitioner has been arbitrarily subjected to stamp duty liability on the total rent for two years, which is an amount that has not been received by the petitioner and therefore forms a fictitious basis for the liability. Equally, even the presumption that one year's advance rent is 'money advanced' is utterly misconceived. The aforenoted authority in Citibank's case has outrightly rejected such a treatment because it is based on a presumption of fact and does violence to the intention of the law.

11. As the law, on the subject already stands declared and the meaning of expression "money advanced" is held to be completely distinct from advance payment of rent, therefore, on the merits, there is no doubt that the impugned orders by the respondent No.1 have gone against the letter and spirit of the law. Furthermore, the impugned orders have ignored Article 35(a)(ii) in Schedule-I to the Act which caters for the amount of stamp duty payable on a lease agreement extending for a term of one year but not more than three years. As the Schedule to the Act does not deal with the specific case of advance payment of rent under a lease, therefore, the aforenoted general provision, namely Article 35(a)(ii) of the Schedule-I remains applicable to the transaction in the present case as the charging provision.

12. Turning now to the first question whether the foregoing legal defect is liable to correction in the constitutional jurisdiction or ought to be left to the determination of the statutory remedial fora. With regard to availability of an alternate remedy there is abundant case-law that the same must be adequate in term of Article 199 of the Constitution. In a case as the present one involving a question of law, the settled view is that primarily it is the duty of the superior courts to interpret the law. Reference is made to Messrs Shamim and Co. v. Tehsil Municipal Administration, Multan City through Nazim and 2 others (2004 YLR 366), Messrs Pioneer Cement Ltd. v. Province of the Punjab and another (2000 CLC 54 Lahore), United Business Lines S.I.E. Gujranwala and another v. Government of Punjab and 5 others (PLD 1997 Lahore 456) and Khadim Hussain and another v. District Council, Lyallpur and another (PLD 1976 Lahore 1044). Consequently, notwithstanding the pendency of proceedings before the Collector Lahore regarding the question of law raised in the dispute, the said forum does not constitute an adequate remedy for resolution of a question of law and a constitutional petition is maintainable. Clearly, the object of the constitutional jurisdiction is to prevent injustice caused by excessive exercise of power by a public authority. This is such a case. Petition allowed. The amount deposited with the D.R. (Judl.) of this Court shall be refunded to the petitioner. M.H./N-70/L Petition allowed.