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2000 DIGILAW 393 (CAL)

Naresh Kumar Jain v. State of West Bengal

2000-08-07

Dilip Kumar Seth

body2000
ORDER D.K. Seth, J. Petitioner had preferred this writ petition in his individual capacity though in the body of the pleading it has been contended that he holds power of attorney on behalf of the owners of the property. My attention has been drawn to annexure "D" of the writ petition being copy of the power of attorney which runs as follows:- "To appear and represent us in all Courts and in all jurisdiction before Collector/Assessor of Calcutta Municipal Corporation and any other department of Calcutta Municipal Corporation, all Commissioner, Revenue Collectors, Collectors, Public Officers, Police Officers, Judges, Magistrates and before all other competent Courts of Law, Registrars, Sub-Registrars and other person or persons or before any other competent authority/authorities or before the officers of Calcutta Improvement Trust, Calcutta Metropolitan Development Authority and Competent Authority of Urban Land (Ceiling and Regulation) Act, 1976, Income Tax Authority/Authorities and Tribunals whatever to deposit and to withdraw money and grant receipts therefore and to take all such step/steps and to do and execute all such acts and things as may be deemed necessary and expedient." 2. Relying on this passage Learned Counsel for the petitioner contends that the petitioner is entitled to move the petition in his individual capacity without describing himself as attorney. I am afraid that such proposition cannot be accepted. Even if the conditions contained in clause en may empower the petitioner to do all acts on behalf of the executors but still then he has to do in the capacity of an attorney and not in his individual capacity. The terms as reproduced above does not show that the petitioner can move the petition in his individual capacity and not on behalf of the attorney. Be that as it may, an attorney always acts on behalf of the executor, He has to describe himself as an attorney. Even if he is an attorney he has no individual right in respect of such property other than that of the owner. 3. The Power of Attorney Act, 1882 defines power of attorney in section 1A. Be that as it may, an attorney always acts on behalf of the executor, He has to describe himself as an attorney. Even if he is an attorney he has no individual right in respect of such property other than that of the owner. 3. The Power of Attorney Act, 1882 defines power of attorney in section 1A. "The power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing the power of attorney." Section 2 empowers the holders of the power of attorney to execute any instrument or to do anything with his own name and signature and his own seal within the authority of the executor of the power of attorney and such document and execution shall be deemed as it has been executed or done by the holder of the power of attorney in the name and with the signature of the donor thereof. Thus, while the holder of the power of attorney is empowered to act in his own name but he acts on behalf of the donor of the power of attorney. Therefore, the donee has to signify that he is to execute the documents as attorney of the donor and on his behalf. He cannot execute the document in his own name without referring to the fact that he is executing it on behalf of the donor as his attorney. 4. In the case of Revula Subba Rao vs. Income Tax Commissioner, AIR 1952 Madras 127 (135) (D.B.), it was held that section 2 proceeds on the assumption that there is a power of delegation available or exercisable under the existing law and provides that the donee of a power might act for and in the name of principal. The section does not lay down that the attorney as an agent would do things in his own name for the principal. 5. In the case of Yogesh Singh Saheta vs. Niranjan Lal Gupta, AIR 1981 Delhi 222 (223), it was held that a donee of a power of attorney is entitled to act and sign on behalf of the donor. 6. The above decisions go to show that the holders of the power of attorney does not act solely or independently in his own name. 6. The above decisions go to show that the holders of the power of attorney does not act solely or independently in his own name. He has to act for and on behalf of the donor and as such he has to signify that he was executing the document as attorney of the donor. Otherwise, it would be an execution by himself in the individual capacity unless it is signified that he is to do as an attorney of the donor. 7. The power of attorney excludes or exempts the presence of the donor while executing the document through the attorney who executes in his absence on the authority of the donor as his attorney which is required to be signified at the time when he purports to do any act under the authority of the power of attorney given to him. In the absence of such significance with regard to the authority the acts deem to have been taken by the attorney in his own name may not bind the donor. 8. Therefore, the petitioner cannot maintain this writ petition in his individual capacity. The writ petition, therefore, fails and is accordingly dismissed. There will be no order as to costs. 9. It is contended that writ petition being WP No. 19262 (W)/99 was directed to take up alongwith this matter. But the Learned Counsel Mr. P.S. Basu is unable to show any copy of the minutes to that extent. The said matter is also shown as serial number 109 in the Appellate Side list. Mr. Banerjee, however, produced a copy of the dictated order dated 14.1.2000 passed by His Lordship the Hon'ble Basudev Panigrahi, J. in this writ petition where it was directed that the said matter being AST 2354 of 1999 since been numbered as writ petition 19262(W) /99 be listed along with this Original Side matter. 10. Since in that matter also petitioner had sought to move the petition in his individual capacity this order will also govern the said writ petition as well. 11. In view of the above order no order need be passed on the application for addition of party filed by Mr. Banerjee and Mr. P.S. Basu. 12. All parties are to act on a xerox signed copy of this dictated order on the usual undertakings. Writ petition fails and dismissed