P L D 1994 Quetta 9 (PLP)

IFTIKHAR MUHAMMAD CH., J.

Petitioners have challenged in this Constitutional petition, instructions issued by the Deputy Commissioner /Registrar to Sub-Registrar Quetta -not to resister any instrument including title deeds without having obtained certificate of the market value of the subject-matter, from the concerned Revenue Officers. Petitioners' grievance is that they entered into a sale transaction in respect of a plot of land at consideration of Rs.4,00,000 vide sale-deed dated 14th April 1993. The conveyance was presented before respondent No.2, for registration who refused to do so on the objection of disclosing incorrect valuation of the subject-matter. However, they were guided to obtain a certificate of valuation from the Patwari ,of the Halqa in pursuance of instructions issued by. the Registrar on 17th March 1993, 6th April 1993 and 27th April 1993 respectively.

2. Mr. Shakeel Ahmed, Advocate, appeared on behalf of petitioners, and urged as follows:-- (a) The instructions referred to hereinabove are improper and contrary to the provisions of section 71 of the Registration Act. (b) The respondents acted without lawful authority and jurisdiction in not registering the instrument of sale-deed, following the instruction mentioned above.

3. On the other hand Mr. Ejaz Yousaf Choudhary, the learned Additional Avocate-Goneral Balochistan, submitted: (a) To curb the tendency of evading taxes including Stamp duty Registration fee etc., on the compulsorily registrable document; pertaining to movable. and immovable properties, lawful instruction have been issued by the Registrar, therefore, with a view to recover the proper stamp duty and registration fee, the registrar as well as other officials discharging their functions, in that behalf were directed to conduct a summary enquiry to ensure that proper market value is mentioned in the instruments. (b) The petition is liable to be dismissed in view of alternate remedy of appeal against the order of respondent No.2 before respondent No.l. (c) The impugned action on the part of respondents not being without lawful authority and jurisdiction, does not admit interference by this Court in exercise of extraordinary Constitutional jurisdiction.

4. We have heard the parties' counsel at length and also perused with their assistance the relevant law. It is to be noted that in the letter dated 17th March, 1993, the respondent No.l issued the following instructions to Sub- Registrar:

Similar type of instructions were made to the respondent No.2 in another letter, dated 6th April, 1993 with reference to the lease deeds of the Cantonment Board, and property being managed by the Q.D.A. In another letter, dated 27th April, 1993, directions were issued relating to the property being mortgaged with the financial Institution. As case in hand is covered by the instructions reproduced hereinabove therefore, it is to be examined .whether such conditions have been imposed with lawful 'authority or otherwise. Mr. Shakeel Ahmad, learned counsel for petitioners submitted that under ,section 71 of the Registration Act, the Registrar has no authority to impose the condition that the subject-matter of sale-deed before presentation for registration should be valued according to the prevalent market rate. Mr. Ejaz Yousaf, Choudhary, the Additional Advocate General, emphasised that since Registration fee is to be charged on the instruments by Sub-Registrar and also to ensure that evasion of taxes including the stamp, duty registration fee, may not take place, the impugned instructions have been issued legally. A perusal whereof revels that respondent No. 1 who is also collector of the district under the Land Revenue Act by issuing these instructions has tried to achieve the following objects:- (a) The instruments will not be registered without examining the Furd of the property having the signatures of Tehsil authorities. Probably this condition was imposed to obliviate the chances of illegal transfer of the property without the notice of its owner. The Furd annexed with the instrument would furnish prima facie an evidence that the person who intends to transfer the property on the name of others is its real owner. . (b) The concerned Tehsildars have been bound down to issue the furd in the cases of joint holdings under his signatures indicating that the transferee has this much specific share and only to that extent he is competent to transfer the property because in presence of ,such evidence Sub-Registrar will be bound to register the deed to the extent of the share of that person and so far remaining sharers are concerned, their proprietary rights will be protected. (c) The Sub-Registrar shall demand National I.D. Card of the seller as well as purchaser to ensure that a genuine document by the real persons have been presented for registration and unscrupulous persons shall abstain from getting transferred the property of a third person, who is not party to the transaction and this would furnish a safeguard to the innocent owners of the immovable. property. The abovenoted terms conveniently can be imposed by the Registrar as well as the Sub-Registrar in exercise of jurisdiction under section 21 of the Registration Act, according to which, no non-testimantary document relating to immovable property shall be accepted for registration, unless it contains a description of such property, sufficient to identify the same..

5. There is yet another clause in the letter referred to hereinabove, which pertains to the valuation of the subject-matter of the deed, according to its market value. In this behalf, it is to be observed that under section 71 of the Registration Act, 1908, a Sub-Registrar, refusing to register a document is bound to record the reasons, which however will not be required to be mentioned on the ground that the property to which it relates is not situated within his sub-District. Mr. Shakeel Ahmed, Advocate, contended that the Registration Officer is not empowered to question the value of the subject matter given in instrument because his duty is to examine whether it is properly stamped or not. Reliance was placed on- AIR 1960 Patna 470 and AIR 1985 Madhya Pradesh p.12. We have given our anxious thought to the arguments put forth by the learned counsel. A careful survey of the Registration Act, as well as Stamp Act; persuades us to hold that the fixation of valuation of the property is exclusively a matter between the seller and purchaser and both are not bound to fix the valuation of the property according to the market value and the Registrar is bound to register an instrument under section 71 of the Registration Act, provided it has been properly stamped. No doubt tendency is rapidly growing to evade the fixations of stamp duty etc. but in absence of statutory provisions of the law concerned parties cannot be directed to enter into a transaction on the basis of market value of the subject-matter. So much so on account of lacuna in the law, no check can be imposed by the Registrar in not mentioning the proper valuation of. the property. Therefore, we are constrained to hold that the instruction in the letter regarding mentioning the market value of the subject-matter according to market rate is outside, the provisions of section 71 of the Registration Act.

6. Despite of coming to above conclusion, we are confirmed with another aspect of case i.e. respondent No.2 the Sub-Registrar factually has no! refused to register the sale-deed allegedly presented by petitioner before him because, they were guided to approach the concerned Revenue Authorities to fulfil the conditions, other than the valuation certificate of the property and till the time such order is not made or the instructions referred to hereinabove, are not followed, we cannot issue directions to respondents for the registration of sale-deed. Therefore, it is held that the petition has been filed prematurely, which is dismissed-at this stage. Copy of the judgment be sent to the Government of Balochistan through Chief Secretary for taking steps to suitably amend the Registration as well as Stamp Act with a view to recover stamp duty according to market value of different transactions. There shall however be no order as to costs. A.A./458/Q Petition dismissed