' 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. Para wise 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 Circular No, HRC/4521, dated 2442-2004 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 para wise 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 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 (Provincial 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 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 purpose of section 32.-(1) For the purposes of section 32, the following powers of attorney 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 within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any 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; 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 'I.' 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 (Reyenue), 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 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.