ABDUL RASHID ABBASI vs AUDIT DEPARTMENT OF AZAD JAMMU AND KASHMIR through Director General Audit Azad Jammu an

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ABDUL RASHID ABBASI VS AUDIT DEPARTMENT OF AZAD JAMMU AND KASHMIR through Director General Audit Azad Jammu and Kashmir, Muzaffarabad art. 63(a) [as applicable in State of azad Jammu and Kashmir]---Right of prior-purchase / pre-emption---Transfer of property to decree-holder (pre-emptor)---Decree for possession on the basis of right of prior-purchase / pre-emption---Stamp duty---Payability / chargeability---Scope---Vendee having already paid duty etc.---Effect---Plea of the decree-holder was that as he stepped into the shoes of vendee, so no stamp duty was leviable---Validity---It is a bedrock precept of law that right of pre-emption is not a right of re-purchase but simply a right of substitution by reason of a legal incident to step into the shoes of vendee in respect of all the rights and obligations arising from the sale under which he has derived his title---The right of pre-emption is nothing more and less than the substitution of the pre-emption for the vendee, and after substitution the pre-emptor steps into the shoes of vendee---Therefore , the pre-emptor has got all the rights which were available to the vendee, the obligations of the vendee also transfer to pre-emptor---In ordinary course of law when a suit for possession on basis of right of prior purchase succeeds, the pre-emptor is substituted in place of vendee and his name is entered in the revenue record in view of decree of the court without any stamp duty---Though the present case is slightly divergent because the plot which was pre-empted /decreed (the plot-in-question) was situated in a housing society and under bylaws of every housing scheme, on transfer of plot, the stamp duty is imposed in a normal routine but as the plot-in-question was transferred to petitioner / decree-holder as result of decree no stamp duty was liable because he turned into an owner by reason of legal incident, so the demanding of stamp duty was anomalous---Even otherwise, the plot was transferred to the vendee in year 2012 whereas at relevant time no stamp duty was liable to be paid as the Stamp act was enforced in azad Jammu and Kashmir vide Notification dated 25-06-2014 and obviously the vendee paid all dues at relevant time which could not be claimed, which fact of payment of all dues was also proved from the script dated 17-01-2018 addressed to Deputy Commissioner (Chairman allotment Committee) by Secretary allotment Committee as it had been mentioned in said letter that art.63(a) of the Stamp act, 1899 was not attracted---High Court set the impugned notices and all the subsequent proceedings in furtherance of said audit objection were set at naught by declaring the same as anomalous, void ab-initio and coram non-judice---Writ petition was allowed.

ABDUL RASHID ABBASI vs AUDIT DEPARTMENT OF AZAD JAMMU AND KASHMIR through Director General Audit Azad Jammu and Kashmir, Muzaffarabad art — 2026 PLD 36 HIGH-COURT-AZAD-KASHMIR

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