P L D 2006 Lahore 630

Before Muhammad Akhtar Shabbir, J

Mrs. MUZNA SAQLAIN ALVI---Petitioner

Versus

SUB-REGISTRAR, MODEL TOWN COURT, LAHORE and another---

Respondents

Writ Petition No.4818 of 2006, decided on 24th May, 2006.

(a) Registration Act (XVI of 1908)---

----S. 33---Expression "reside"---Connotation---Place of registration---Scope---Power

of attorney can be registered by Registrar or Sub-Registrar in whose districts or sub-
district the principal resides---Expression "resides" is not defined in Registration Act,
1908 but there is no reasons to assume that it contemplates only permanent residence
and excludes temporary residence---Power of attorney executed before and
authenticated by an office within whose jurisdiction the principal temporarily resides
is not invalid---Object of use of word "resides" is that Legislature wanted to put
restraint and exclude element of fraud, forgery, undue influence and duress in
alienation of immovable property---Where one claims to reside at place "L", he must
either own immovable property or should have business, or industry or service or job
or admission in educational institution at place "L" to be covered by term "resides".

Sarat Chandra Basu v. Bijoy Chand Mahatab Maharaja-Dhiraj Bahadur of

Burdwan AIR 1937 PC 46 and Ghulam Nabi v. Secretary to the Government of
Punjab Forest Department Punjab, Lahore through Divisional Forest Officer and 3
others PLD 1997 Lah. 193 rel.

(b) Registration Act (XVI of 1908)---

----Ss. 32, 33, 34 .8c 35---Constitution of Pakistan (1973), Art.199---Circular

No.HRC/4521 dated 24-12-2004 issued by Executive District Officer (Revenue)---
Constitutional petition---Power of attorney---Non-registration at the place of
residence of principal---Petitioner being resident of place "L" sought registration of
her power of attorney regarding her property situated at place "K"---Registration
Officer at place "L" denied registration on the basis of a circular issued by the
authorities, whereby no power-of-attorney could be registered regarding properties
not situated at palace "L"---Plea raised by petitioner was that the circular was
unlawful---Validity---As the petitioner was resident of place "L" the Registration
Officer was bound to register the document, if requirements of Ss.34 and 35 of
Registration Act, 1908, prescribing procedure for satisfaction of registration authority
were fulfilled---Registration Officer did not assign any reasons for non-registering of
the document---Imposition of ban by Authorities for registration of general power of
attorney relating to property situated outside the District was in conflict with the
provisions of Registration Act, 1908---Circular issued by Authorities was without
lawful authority and was of no legal effect---High Court allowed the authorities to
introduce any other measures for prevention of fraud within the scope of authority
affirmed by law or to seek amendment of the relevant law---Petition was allowed in
circumstances.

M. Zunnoon Khan v. Nisar Ahmad Siddiqui, Member Board of Revenue, Sindh

and 2 others 2001 CLC 326; Muhammad Ewaz v. Birj Lal 77 I All. 465; Chottey Lal
v. The Collector of Moradaabad AIR 1922 PC 279 and Asad Zaheeruddin and 3 others
v. The Sub-Registrar "T" Division-I and 7 others 1987 CLC 786 ref.

Muhammad Afzal Khan for Petitioner.

Muhammad Arif Bhinder, Addl. A.-G. along with Muhammad Dawood,

Record Keeper.
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ORDER

MUHAMMAD AKHTAR SHABBIR, J.---The petitioner seeks indulgence of this

Court calling in question the provisions of Circular No.HRC/4521, dated 24-12-2004
issued by the Executive District Officer (Revenue), respondent No.2 issuing direction
to the Sub-Registrars in Lahore District to obtain certain documents before registering
the power of attorney. The office circular ostensibly issued with the objective of
minimizing the chances of fraud and to protect the people from fraud and preparing of
bogus documents and transactions of the properties, which is reproduced as under:--

"It has been noticed with concern that there has been growing tendency in
public in recent years to get registered General Power of Attorney in Lahore
District relating to the properties situated in other districts. It is understood
that the Registering Staff is unable to exercise the desired vigilance in
verifying the real title of the executants in other districts. Some time there
comes very unhappy situation which puts the public into colossal loss of
properties and also leads to unnecessary litigations.

In order to protect the people from any fraud of bogus documents and also to
tighten control over the fraudulent transactions of properties, you are directed
to stop forthwith the registration of General Power of Attorneys relating to the
properties situated outside the Lahore District. Any laps in the matter will be
taken serious notice of."

2. Parawise comments from the respondents have been received. The learned
Addl. Advocate General has put his appearance on behalf of the respondents,
therefore, I dispose of this writ petition as a notice case.

3. The learned counsel for the petitioner contended that a procedure for
registration of the documents is provided in the Registration Act and the Registering
Authority is bound under the law to register the documents presented before him after
performing the requirements prescribed in the Act and the procedure laid thereunder.
Further contended that the administrative functionaries while interpreting the laws
cannot add the words to the statute nor assume jurisdiction to interpret the law and
any direction or instructions through the circular contrary to the statutory provisions
of law would not stand. He placed his reliance on the case of M. Zunnoon Khan,
Advocate v. Nisar Ahmad Siddiqui, Member Board of Revenue, Sindh and 2 others
2001 CLC 326.

4. On the other hand, the learned Addl. Advocate General vehemently opposed
the arguments of the learned counsel for the petitioner contending that the
constitutional petition is not maintainable as the alternate remedy by filing the appeal
is provided under the law. Further contended that the impugned circular has been
issued to protect the people from any fraud of bogus documents and also to tighten the
control over the bogus transactions of the properties.

5. I have heard the learned counsel for the parties and perused the record.

6. The petitioner's father namely Zubair Amanat Kureshi was the owner of
property consisting of residential plot measuring 400 Sq. Yds, located at 296-
Block/section 6-G, Category-B, Mehran Town Scheme, Korangi, Karachi, who died
and after this death the petitioner along with her brother namely Omair Amanat
Kureshi succeeded as owner of the property to the extent of their legal shares and the
plot had been mutated in her name and in the name of her brother through a mutation
No.143 sanctioned by the District Government Karachi. The petitioner while settled at
Lahore, intend to sell her plot and she appointed Mr. Ateed Riaz son of Late Mr.
Ashraf Riaz resident of 119-120, Qamar House, M.A. Jinnah Road, Karachi as her
general attorney. She presented the said document of general power of attorney for its
registration before the Sub-Registrar Nishtar Town, Lahore/respondent No.1. The
grievance of the petitioner is that despite the verification obtained by respondent No.1
from the City District Government Karachi he has verbally refused to register the
general power of attorney on the basis of the instructions contained in the impugned
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Circular No.HRC/4521, dated 24-12-2004 and the respondent has not given reasons in
writing for not registering the general power of attorney. The learned counsel for the
petitioner contended that the act of respondent No.1 declining to register the general
power of attorney is contrary to the provisions of section 71 of the Registration Act,
1908.

7. In the parawise comments the respondents have taken a stand that in order
to protect the people from fraud of bogus documents and also to tighten control over
the fraudulent transaction the Executive District Officer (Revenue), Lahore directed to
all the Sub-Registrars to stop forthwith the registration of General Power of Attorney
relating to the properties situated outside the Lahore District. It is further urged in L
the comments that before recording the reasons of refusal, the local commission has
taken back the General Power of Attorney in her possession hurriedly and did not
afford an opportunity for recording the reasons for refusal. Section 29 of the
Registration Act, 1908 provided the place for registering the others documents, which
reads as under:

"Section 29. Place for registering other documents .-(1) Every document (not
being a document referred to in section 28, or a copy of a decree or order),
may be presented for registration either in the office of the Sub-Registrar in
whose Sub-district the document was executed or in the office of any other
Sub-Registrar under the (Provisional Government) at which all the persons
executing and claiming under the document desire the same to be registered.

(2)…………………………………"

Section 28 deals with the place of registration of the document relating to the
immovable property and falling within section 17, subsection (1), clauses (a), (b), (c),
(d) and (e). If such document affects immovable property and such document shall be
presented for registration in the office of the Sub-Registrar within whose sub-district
the whole or some portion of the property to which such documents relates is situate.

8. The document in dispute presented for registration was a power of attorney

executed by the attorney the petitioner for transfer of the property empowering the
attorney with regard to the property inherited from her father. Letter for confirmation
was written by the Sub-Registrar/respondent on 4-4-2006 seeking information from the
City District Government Karachi and in response thereto vide a letter dated 20-4-2006
the Deputy District Officer Land Management of Karachi confirmed the ownership of
the residential Plot No. B-296, Sector 6-G, measuring 400 Sq. Yds., situated at
Mehran Town Scheme, Korangi Karachi, inherited by the petitioner and Omair
Amanat Kureshi. It is the responsibility of the registration officer to register the
documents if it is presented before him by a competent person as provided in section
32 of the Registration Act:

9. Section 33 deals with the power of attorney which is reproduced below for
further guidance:

"Section 33. Power of attorney recognizable for purposes of section 32 --(1)

For the purpose of section 32, the following shall alone be recognized, namely:---

(a) if the principle at the time of executing the power-of-attorney resides in

any part of Pakistan in which this Act is for the time being in force, a power-
of-attorney executed before and authenticated by the Registrar or Sub-
Registrar is the he principal resides;

(b) if the principal at the time aforesaid resides in an other part of Pakistan, a
power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the times aforesaid does not reside in Pakistan, a power
of attorney executed before an authenticated by a Notary Public, or any Court,
Judge, Magistrate, Pakistan Counsel or Vice-Counsel, or representative of the
Federal Government;

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It would mean that the power-of-attorney can be registered by the Registrar or Sub-
Registrar in whose districts or sub-district the principal resides. The expression
"reside" is not defined in the Act. It has been held by the Privy Council that there is
no reason to assume that it contemplates only permanent residence and excludes
temporary residence. A power-of-attorney executed before and authenticated by an
office within whose jurisdiction the principal temporarily resides is not invalid. The
object of use of word "resides" was that Legislature wanted to put restraint and
exclude element of fraud, forgery, undue influence and duress in alienation of
immovable property. Where one claimed to reside at, he must either own immovable
property or should have business, or industry or service or job or admission in
educational institution at `L' would be covered by term "resides". Reference in this
context can be made to the case of Sarat Chandra Basu v.Bijoy Chand Mahatab
Maharaja-Dhiraj Bahadur of Burdwan AIR 1937 PC 46 and Ghulam Nabi v. Secretary
to the Government of Punjab Forest Department Punjab, Lahore through Divisional
Forest Officer and 3 others PLD 1997 Lahore 193. From the perusal of the general
power-of-attorney presented by the executant/petitioner for registration, it is evident
that the petitioner is resident of House No.686-X, Phase 3, DHA, Lahore holding
CNIC No.35201-1386054-0. The registration officer is bound to register the document
if the requirements of sections 34 and 35 of the Act prescribing the procedure for
satisfaction of the registering authority are fulfilled. Section 35 of the Act prescribes
the procedure for the registering authority and if any person presenting any document
of registration or claiming under any document, which is capable of being so
presented, desires the appearance of any person whose presence or testimony is
necessary for the registration of such document, the registration officer (may, in his
discretion) call upon such officer or Court as the (Provincial Government) directs in
this behalf to issue a summons requiring him to appear at the registration office, either
in person or by duly authorized agent. Meaning thereby that the only duty cast upon
the registering authority for his own satisfaction can perform all the requirements
provided in sections 32 to 36. It is concluded that the provisions of Chapter 6 (32 to
38) are mandatory in nature and not directory and non-compliance of these provisions
will make the documents null and void and it is the intention of the Legislature that
registration of deed should be null and void by reasons of non-compliance of the
provisions of Registration Act, 1908. In case of Muhammad Ewaz v. Birj Lal 77 I All.
465 it was observed by the Honourable Judges that:--

"It is rather to be inferred that the Legislature intended that such errors or
defects should be classed under the general words `defects in procedure' in
section 88 of the Act, so that innocent and ignorant persons should not be
deprived of their property through any error or inadvertence of a public officer,
on whom they would naturally place reliance."

10. The Registration Act has imposed several conditions regulating the
presentation of documents for registration, and it is of great importance that those
conditions, framed with a view to meet local circumstances, should not be weakened
or strained on the ground that they may appear to be exacting and strict. Reference in
this context can be made to the case of Chottey Lal v. The Collector of Moradaabad
AIR 1922 PC 279. It was also observed by the Judges of the Privy Council that there
are many mischiefs against which the statute was designed to afford protection in
requiring' obedience to the provisions for presentation in the first instance.

11. As the registering officer/respondent has not assigned reasons for non-
registering of the document, the imposition of the ban by the Executive District
Officer (Revenue), Lahore for registration of the general power-of-attorney relating to
the property situated outside the Lahore District is in conflict with the provisions of
the Registration Act.

12. The learned Addl. Advocate-General when confronted to point out any
provisions of law from the Registration Act vide which the Executive District Officer
(Revenue), Lahore/respondent No.2 by issuing the circular in the district has imposed
the ban on the registration of the documents, could not respond. I do not disagree with
the anxiety of the Executive District Officer (Revenue) who made some efforts to
check frauds and forgery in this respect but I find that the said measures may hardly
serve any useful purpose. In case of M. Zunnoon Khan, Advocate v. Nisar Ahmad
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Siddiqui, Member Board of Revenue, Sindh and 2 others 2001 CLC 326 where a
circular ostensibly has been issued with the object of minimizing the chances of fraud.
It was challenged by the petitioner before the Sindh High Court and the Honourable
Judges have observed that:--

"Section 35 of the Registration Act casts a solemn obligation upon the

Registering officer to satisfy himself that the person appearing before him is
genuine. He could be required to state the reasons for his satisfaction.
However, the stipulation that he should obtain a copy of one of six types of
documents and place on record might possibly apart from causing undue
burden upon citizens enable him to shed his responsibilities of identifying the
maker of the document and enable him to act mechanically by registering a
power-of-attorney after obtaining copies of one of the six documents whose
own authenticity may be open to serious doubts."

The learned Judges of the High Court further observed as under:

"We, therefore, agree with the petitioner that it would be far more important to
take strict measures against-those who are found guilty of mal-practices
instead of issuing omnibus directives. We would at the same time add that
when a power of attorney is fraudulently registered primarily on the basis of
identification by an advocate the registration officer or the concerned
authorities must invariably apprise the concerned Bar Council for taking
disciplinary action against the advocate abetting such fraud."

13. In another case Asad Zaheeruddin and 3 others v. The Sub-Registrar "T"
Division-I and 7 others 1987 CLC 786 when the Martial Law Administrator made an
order requiring the recovery of the capital gains tax wherever leviable under the Rules
to be recovered from the assesses before registration of sale-deed. It was held that on
the basis of the order of the Martial Law Administrator the registering authority could
not refuse registration of the conveyance deed on the ground of non-production of a
clearance or no-objection certificate regarding payment of capital gains tax.

14. In the case in hand, the petitioner has mentioned her permanent place of
residence at D.H.A. Lahore. As defined the impression reside also includes the
temporary residence as laid down in the case of Sarat Chandra Basu v. Bijoy Chand
Mahatab Maharaja-Dhiraj Bahadur of Burdwan AIR 1937 Privy Council 46) wherein
Lord Maugham, Sir Lancelot Sanderson and Sir Shadi Lal have observed that the
expression "resides," as used in section 33 of the Registration Act is not defined in the
statute; but there is no reasons for assuming that it contemplates only permanent
residence and excludes temporary residence.

15. From the above discussion, this Court is constrained to declare the
impugned circular to have been issued by respondent No.2 without lawful authority
and hold the same to be of no legal effect. Respondents, however, are at liberty to
introduce any other measures for prevention of fraud within the scope of authority
affirmed by law or to seek amendment of the relevant law. This writ petition is
allowed as prayed for.

M.H./M/308/L Petition allowed.

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