Writ petition under Article 226 can be instituted through power of attorney holder

Allahabad High Court: Adjudicating upon the question referred as to whether a writ petition under Article 226 of the Constitution can be filed by a power of attorney holder, the Full Bench comprising of  Dr Dhananjaya Yeshwant Chandrachud, C.J., Devendra Kumar Upadhyaya and Rajan Roy, JJ  answered the same in the affirmative, subject to due observance of safeguards.

The Court observed that it is evident from the provisions of Order 3 Rule 1 of the Civil Procedure Code, 1908 that an appearance, application or act in or to any court required to be made or done by a party in the court, can be effectively made or done by the party-in-person or by a recognised agent. A recognised agent, for that purpose, includes a person who holds the power of attorney. This is a specific application of Sections 1-A and 2 of the Powers of Attorney Act, 1882.

The Court observed that the binding position in law is that a petitioner in exercise of the writ jurisdiction under Article 226 must pursue a claim, right or cause of action personal to him or her. However, when the petitioner seeks to do so through the holder of a power of attorney, the donee of the power of attorney is no more than an agent who acts for and on behalf of the donor, for the reason that the donor is, for some reason, unable to present himself/herself before the Court in order to pursue the proceedings. The donor of the power of attorney may be incapacitated from doing so temporarily for reasons or exigencies, such as exigencies of service or station or an ailment which immobilises him/her from pursuing the proceedings personally. The important point to be noted, as a matter of principle, is that when the donor authorises the donee to act on his/her behalf, the donee acts as an agent and is subject to the limitations which are created by the instrument by which he is authorised. The donee does not pursue a claim or right personal to him but it is the donor who espouses his own personal right through the holder of a power of attorney. The petition is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition instituted under Article 226 is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the Court. Having held so, the Court emphasised the necessity of observing adequate safeguards such as:

(1) The power of attorney by which the donor authorises the donee, must be brought on the record and    must be filed together with the petition/application;
(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and
(3) The donee must be confined to those acts which he is authorised by the power of attorney to discharge.

[Syed Wasif Husain Rizvi v. Hasan Raza Khan, 2016 SCC OnLine All 175, decided on January 21, 2016]

To read the Judgment, click HERE

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