2004 PLP 1143 (YLR)

6. Now section 35 of the said Act lays down the pre-conditions upon fulfillment whereof Registrar is bound to register the document and similarly condition, non fulfillment whereof or on the existence whereof he is bound to refuse to register document. I deem it proper to reproduce here said section 35:--

35. Procedure on admission and denial of execution respectively:

(1) (a) If all the persons executing the document appear personally before the Registering Officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) If in the case of any person appearing by a representative, assign or agent, such repre sentative, assign or agent admits the execution, or (c) If the person executing the document is dead, and his representative or assign appears before the Registering Officer and admits the execution, the Registering Officer shall register the document as directed in sections 58 to 61 both inclusive. (2) The Registering Officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3) (a) If any person by whom the document purports to be executed denies its execution, or (b) If any such person appears to the Registering Officer to be a minor, an idiot or a lunatic, or (c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the Registering Officer shall refuse to register the document as to the person so denying, appearing or dead: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part-XII: Provided further that the Provincial Government may, by notification in the official Gazette declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this subsection and of Part-XII. It will be seen that in case the executant of a document present before the Registering Officer is personally known to him or he is otherwise about his identity and said person admits execution of the document presented for registration, Registering Officer shall register the document in the manner directed in sections 58 to 61 of the said Act. Similarly if the said person denies the execution of the document or if the said person appears to be a minor, an idiot or a lunatic to the Registering Officer or the L.Rs. of an executant who is dead denied the execution, he shall refuse to register the document.

7. Now section 61 of the said Registration Act mandates that upon completion of the registration of the document same shall be returned to the person who presents same for registration or to such other person who has been so authorized to receive the document on the receipt issued under sections 52 of the said Act. Under section 71 of the Registration Act, a document which has been refused to be registered shall be returned with a copy of the reasons for refusal. Section 72 provides them remedy of appeal against order of refusal to register document. A suit may also be filed thereafter in terms of section 77 of the said Act 1908.

8. Respondents Nos.1 and 2 do not figure anywhere in the scheme of the said Act, 1908.

9. Now under section 49 of the said Registration Act, 1908" unless and until the document required by the said Act to be registered has been registered, it shall not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property. The said direction of respondent No.2. having the effect of creating hurdle in the way of registration of a document ultimately deprives the citizens of the rights conferred upon them under Article 23 of the Constitution. This right is absolute and is subject to only reasonable restrictions imposed by law in the public interest. Respondents Nos. 1 and 2 have no lawful authority to impose any restriction on the said right otherwise than in accordance with provisions of Article 23 of the Constitution provided that restrictions are reasonable.

10. Now as to the reasons stated by the learned counsel for the respondents Nos. 1 and 2 for issuing the said directions, I have already referred to the relevant provisions of Registration Act, 1908 which contains sufficient safeguards upon a strict observance of said law by the Registering Authorities.

11. Now coming to the said preliminary objection of Malik Muhammad Nawaz Khan, Advocate, it is true that the petition is not happily worded but it does convey the grievance i.e. the infringement of the rights to property conferred by the constitution upon citizens of Pakistan including the petitioner.

12. Now in the Indian Constitution, where powers of Supreme Court for enforcement of fundamental rights and those of High Court for the same purpose (Article 32 and Article 226) have been placed in rather reverse form to provisions of our Constitution contained in Article 184 and Article 1999 of the Constitution. A similar question arose before the Supreme Court of India. Following majority view was expressed by the Chief Justice Chandrachud in para-23 of the judgment in the case of Fertilizer Corporation Kamagar Union (Regd) Sindri and others v. Union of India and others AIR 1981 SC 344:-- "But we feel concerned to point out that the maintainability of a writ petition is correlated to the existence and violation of a fundamental right is not always to be confused with Article

32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possess a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Art.226 on under Art.32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are then are accountable to the people. The accountability of the public sector to the Parliament is ineffective because the Parliamentary control of public enterprises is "diffuse and haphazard". We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide."

13. Somewhat similar views were expressed by the Chief Justice Muhammad Haleem in the case of Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, at page 489 of the said report: -- "In this milieu, I am of the view that the adversary Procedure, where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney-General, for enforcing the Fundamental rights, would become self-defeating as it will not then be available to provide "access to justice of all" as this right is not only an internationally recognized human right but has also assumed Constitutional importance as it provides a broad based remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i.e. national integration and social cohesion by creating an egalitarian society through a new legal order." I am, therefore, not inclined to uphold the said technical objections of the learned counsel for respondents Nos. 1 and 2.

14. For all that has been discussed above, this writ petition is allowed and the impugned directive issued by respondents Nos.2 to 3 vide Annex-A is declared to be without lawful authority and is accordingly set aside. No order as to costs. S.A.K./A-9/L Petition accepted.