Sardar GHULAM MUSTAFA KHAN Versus DISTRICT REGISTRAR/DISTRICT JUDGE KOTLI, AZAD JAMMU AND KASHMIR
SYED SHAHID BAHAR, J.--- The petitioner by filing the instant constitutional petition is seeking annulment of the orders of Sub-Registrar and Registrar dated 19.03.2021 and 23.04.2021 respectively qua registration of "ABTAL NAMA" dated 11.03.2021 for cancellation of power of attorney dated 21.07.2007.
2. Facts necessary for disposal of the captioned writ petition are that petitioner owned the land comprising khewat No.31, Khata Nos. 154 and 150, sfirvey No.278 min measuring 1 kanal 17 marlas and survey No.280 min measuring 1 kanal total measuring 2 kanal 17 marlas and out of the aforesaid land, the petitioner has installed a Petrol Pump which is known as "KASHMIR WALA FILLING STATION" and the dealership of the aforesaid pump was obtained by the petitioner through an agreement from Shell Pakistan Ltd. and as per supra agreement, the petitioner leased out the land to the Petrol Pump to the extent of land measuring 4 marlas bearing survey No.280 min and 16 marlas from survey No.278 min in favour of Shell Pakistan Ltd. at monthly rent of Rs.400/- for a period of 20 years, however, the lease period was extended from time to time and the District Magistrate Kotli granted NOC in this regard on 07.06.1986. As per stance of the petition, due to other engagements and some personal exigencies, the petitioner was unable to devote full time to the supra business, hence, he appointed his agent respondent No.3, herein, and in this regard, a general power of attorney was executed in his favour which was registered by the Sub-Registrar on 21.07.2007, however, the respondent in violation of the agreement, transferred the whole land qua business "KASHMIR WALA FILLING STATION" on lease for 99 years along with building and structure etc. through lease deed dated 04.03.2021 in favour of his real brother, hence, the execution of the so called lease deed violated the terms of the petitioner's agreement with "SHELL PAKISTAN LIMITED", through which the petitioner was granted the petroleum dealership, therefore, the petitioner in order to protect his business, cancelled the power of attorney by cancellation deed (ABTAL-NAMA) dated 11.03.2021 and submitted the same before the Sub-Registrar/Civil Judge Sehnsa for registration under Section 17 of the Registration Act and the Sub-Registrar vide its order dated 19.03.2021 refused to register the aforesaid cancellation deed, thereafter, the petitioner preferred an appeal before the District Registrar/District Judge Kotli for setting aside the order dated 19.03.2021 which also met the same fate vide its order dated 24.04.2021, hence, this constitutional petition for setting aside the orders of Sub-Registrar and District Registrar.
3. After admission of the writ petition for regular hearing, respondents filed written statement stating therein that the petitioner is not an aggrieved person and has alternate and efficacious remedy which he has availed by challenging the same before the civil Courts, hence, in presence of civil suit, the writ petition is not maintainable. Furthermore, the respondent in light of power of attorney executed the same and that action was endorsed by the Shell Company by having NOC and by paying taxes, meaning thereby that the respondents rightly acted having powers on the subject and the Courts below have rightly rejected the claim of petitioner white passing the impugned decisions, hence, prayed for dismissal of the writ petition.
4. The learned counsel for petitioner while reiterating the grounds taken in the writ petition vehemently contended that the principal (petitioner) has unfettered power to revoke the power of attorney supra at any time as per provision of Sections 202, 203 of the Contract Act. He further argued that both the Sub-Registrar and Registrar have not kept in view the provisions supra as the petitioner has already executed the lease in favour of "PAKISTAN BURMAN SHELL" vide agreement dated 19.01.1988, so, the respondent No.3 cannot execute another lease in favour of his real bother on 04.03.2021 as per terms and conditions of power of attorney. The learned counsel further contended that after execution of the cancellation deed (ABTAL NAMA) dated 11.03.2021, the power of attorney dated 21.07.2007 is deemed to have been cancelled, hence, the respondent did not have any authority to act on the basis of said power of attorney. Lastly, the learned counsel prayed for setting aside the impugned orders of the Courts below.
5. Conversely, the learned counsel for respondents contended that the petitioner has an alternate and efficacious remedy which he has availed by filing the suit before the Sub-Registrar and District Registrar, so, in presence of civil us, the petition at hand is not maintainable. He further argued that the act of the respondents is purely in accordance with law which was rightly endorsed by the Company, therefore, the Courts below have rightly rejected the claim of petitioner while passing the impugned decisions. The learned counsel lastly prayed for dismissal of the writ petition.
6. I have heard the learned counsel for the parties and gone through the record with my due care and caution.
7. As per plain language of the section 35(1) of the Registration Act, 1908, the registering officer shall register the document so presented for registration and all the persons executing the document appear personally before the registering officer in a sense to endorse the said document. In such eventuality, the registering officer is left with no other choice. It is useful to reproduce Section 35 of the Registration Act, 1908 as infra:-
"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 representative, 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."
8. Denial of execution of the document on part of alleged executant or executants is the only eventuality which can lead to denial qua registering a document on part of the registering officer. Although phrase denial of execution is not defined in law, however, refusal to admit execution 'ipso facto' amounts to denial within the meaning of the Act 1 . Imperfectness of title qua execution of the document so presented is of no concern for the registering authority. 2 So far as the reasons for refusal qua registering a document is concerned, same are required to be disclosed in specific manner and should match the eventualities provided in the law.
SQUEEZED ANALYSIS.
9. Seemingly the order passed by the Sub-Registrar is not in line with the provisions of scheme of Registration Act, 1908. Lack of application of mind on part of the Sub-Registrar is oozing from the face of the decisions impugned. Registration of document under law only recognizes and endorse the execution of the same, so far as the validity, existence and legal value of the same is concerned, it is purely within the domain and province of the Civil Court (having jurisdiction over the matter). Civil suit is pending adjudication and alternate statutory remedy of the appeal has not been availed.
10. It is not an absolute rule that in presence of the alternate remedy. the constitutional petition is not maintainable 3 . As per command of Article 44 of the Interim Constitution 1974, only availability of the alternate remedy under statute is not sufficient qua denial of relief under extraordinary writ jurisdiction, efficaciousness of the alternate remedy is one of the factors to be considered. Remedy of appeal before the administrative higher fora in the hierarchy of the relevant law cannot always be considered as an efficacious alternate remedy. If it is established that any act of the functionary has taken a track which is in opposition with the scheme of law, countermand , of such instrument under judicial review is proper treatment of contra jus orders. Trite that an act required to be performed in a specific manner can only be done in a such way otherwise it carries no weight in the eye of law and is regarded as nullity in the eye of law.
(emphasis supplied)
Sequel of the above discussion is that the petition at hand is accepted and the orders passed by the Sub-Registrar and Registrar dated 19.03.2021 and 23.04.2021 are hereby set-aside. Application qua registering the document (Abtal-Nama) shall be deemed to be pending before the registering officer, therefore, the registering officer is directed to take up and dispose of the matter as per law within 30 days.
MQ/33/AJK(HC) Petition allowed.