A Full Bench of Allahabad High Court comprising of Dr Dhananjaya Yeshwant Chandrachud, C.J., Devendra Kumar Upadhyaya and Rajan Roy, JJ in CONSOLIDATION No. – 534 of 2002 of Syed Wasif Husain Rizvi v. Hasan Raza Khan, decided on January 21, 2016, while replying to a reference held that
A Writ petition under Article 226 of the Constitution can be filed by a power of attorney holder, subject to due observance of safeguards.
The bench also observed in concluding para as below :
For the reasons which we have indicated earlier, we hold that we cannot subscribe to the broad principle of law which has been enunciated in the following decisions:
(1) Dr Prabhu Nath Prasad Gupta Vs State of U P, 2003 (52) ALR 520;
(2) Rustam Khusro Shapoor Ji Gandhi Vs State of U P, 2010 (80) ALR 25; and
(3) Gurmeet Kaur Kwatra Vs Vice Chairman, Varanasi Development Authority, Varanasi, CMWP No 44007 of 1998 (decided on 14 December 2009).
When a writ petition under Article 226 of the Constitution is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, 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 which is instituted under Article 226 of the Constitution 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, we must, at the same time, emphasize the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following:
(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.
For these reasons, we hold and have come to the conclusion that the question referred for adjudication before the Full Bench must be answered in the affirmative and is accordingly answered, subject to due observance of the safeguards which we have indicated above.
by Anand Mishra, Founder Advocate, AMLEGALS
( The author is a leading advocate handling cases in various High Courts of India & Tribunals . He can be contacted on firstname.lastname@example.org and for more please refer www.amlegals.com .)