Back
ANDHRA PRADESH HIGH COURT
Dr. Dhananjaya Yeshwant Chandrachud, C.J., Devendra Kumar Upadhyaya and
Rajan Roy, JJ.
Syed Wasif Husain Rizvi —Petitioner
versus
Hasan Raza Khan & Ors. —Respondents
Consolidation No.534 of 2002
Decided on 22.1.2016
For the Petitioner:S.H.I Naqvi, R K Upadhyaya, R S Chauhan, Zishan Ahmad, Advocates
For the Respondents:CSC, Ajmal Khan, G M Kamil, Mohd Aslam Khan, R N Gupta, S K Shukla, Sanjay Bhaseen, Vivek Kumar Shukla, Advocates
IMPORTANT POINT
Writ petition under Article 226 can be filed by power of attorney holder.
Headnote:(A) Powers-of-Attorney Act, 1882—Sections 1-A and 2—Constitution of India—Article 226—Whether a writ petition under Article 226 can be filed by power of attorney holder—Holder of power of attorney does not act for his own benefit and acts in a fiduciary capacity for donor of instrument—By executing a power of attorney, donor creates an agency in donee to act on his behalf—Holder of power of attorney represents donor and does not act in his personal capacity. (Para 6)
(B) Constitution of India—Articles 226 and 227—Powers-of-Attorney Act, 1882—Sections 1-A and 2—Civil Procedure Code, 1908—Order 3 Rule 1—Whether a writ petition under Article 226 can be filed by power of attorney holder—There is no prohibition on an application seeking a writ under Article 226 or Article 227 of Constitution being pursued by a litigant through holder of a power of attorney—Donee of a power of attorney is no more than an agent of donor—Donee represents donor and does not pursue proceeding in his own independent capacity—He acts for and on behalf of donor and is subject to limitations which are contained in instrument by which he is authorised to act on behalf of donor—Donee acts for and on behalf of donor, in name of donor and not for himself—His persona is as an agent of donor and is subject to limitation created by deed by which he is authorised. (Paras 16 and 26)
Result: Writ Petition to be placed before appropriate Bench for disposal.
Dr. Dhananjaya Yeshwant Chandrachud, C.J.—This reference to the Full Bench has been occasioned by a referring order of a learned Single Judge dated 2 December 2015. The issue which has been referred for adjudication by the Full Bench is as follows:
“Whether a writ petition under Article 226 of the Constitution can be filed by a power of attorney holder.”
The meaning of a power of attorney
2. The Powers-of-Attorney Act, 1882 Act was enacted to amend the law relating to powers of attorney. Section 1-A of the Act provides that a power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it. Section 2 stipulates that the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, by the authority of the donor of the power, and every instrument or thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
3. The true meaning of a power of attorney finds elaboration in a judgment of the Supreme Court in State of Rajasthan Vs Basant Nahata, (2005) 12 SCC 77. where the Supreme Court held as follows:
“13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well-known, a document of convenience.
* * *
52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed herein before, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”
4. In a subsequent decision of the Supreme Court in Suraj Lamp & Industries (P) Ltd Vs State of Haryana, (2012) 1 SCC 656: [2011] 6 Supreme 737. the earlier decision, noted above, was followed by a Bench of three learned judges. The Supreme Court held thus:
“A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.” Page 20 at page 666
5. In a more recent decent decision, while elucidating the scope of Section 138 of the Negotiable Instruments Act 1881, a Bench of three learned Judges of the Supreme Court in A C Narayanan Vs State of Maharashtra, AIR 2014 SC 630. observed thus:
“The power of attorney holder is the agent of the grantor. When the grantor authorises the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the gr
