Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the second respondent relating to Circular No.189/C1/2013, dated 2.2.2013 and quash the same as illegal, arbitrary and ultra vires the provisions of the Registration Act, 1908.
For Petitioner: Mr.Sathish Parasaran
For Respondents: Mr.Arvindh Pandian, Addl. Advocate General assisted by Mr.R.Lakshmi Narayanan, AGP
By proceedings, dated 02.02.2013, the Inspector General of Registration, Chennai-28/second respondent herein, has issued a Circular to the Registration Departments, to follow the procedure while effecting the registration of the documents based on the General Power of Attorney in and by which, it is directed that the Life Certificate of the Principal who granted the general power attested by a registered Medical Officer or Central/State A Grade Officer with a photo, has to be appended along with the document which is presented for registration based on the General Power of Attorney on or after 1.2.2013.
2. The petitioner is the Confederation of Real Estate Developers Associations of India (in short, CREDAI), an apex body of the organized real estate developers/builders across India. According to the petitioner, prior to the impugned circular, there was no obligation for production of life certificate of the principal for registration of the sale deeds presented based on the General Power of Attorney, now by virtue of the impugned Circular, the Registration Department started insisting of production of life certificate of the principal and without which, no registration of the documents presented will be given effect to. The grievance of the petitioner is that if the aforesaid procedure is to be followed, the power agents have to practically approach the Principal for each time whenever the documents are presented for registration, to get life certificate, who, in turn, used to put on terms and insist for additional consideration. Therefore, by calling upon the Principal each and every time to procure the life certificate for registration would certainly invite legal entangle between the Principal and the Power Agent which would ultimately constrain the power agents to approach a Civil Court to enforce the specific performance of the sale deeds. It is further stated that when the sale deed is presented for registration based on power of attorney by complying with all requirements envisaged in the statute, there is no justification on the part of the Registration Department in insisting upon for production of life certificate from the Principal since it creates in differences between the Principal and Power of attorney holder.
3. Questioning the above said Circular, the petitioner has come forward with the present writ petition.
4. Mr.Satish Parasaran, learned counsel appearing for the petitioner would contend that the impugned circular issued by the Inspector General of Registration is ex-facie illegal, arbitrary and causing innumerable difficulties to the real estate industry. He would contend that when a document is presented by complying with all the requirements enumerated in the Act for registration based on the power of attorney, there is no justification in refusing the same for want of life certificate of the principal. He pointed out that the Registration Act, 1908 (in short, the Act) provides for a comprehensive scheme for the registration of documents and Section 33 of the Act deals with the powers of attorney recognized under the Act for the purpose of registration of document and Section 33(4) envisages that no further proof of a power of attorney is required, when a power of attorney duly authenticated in the manner as provided under Section 33(1) to (3), is produced. According to him, if a duly registered power of attorney is produced at the time of registration, no further proof is required. He also contended that the impugned circular gives a go by to the exhaustive provisions of the Act and incorporates a new procedure. He has further pointed out that if at all any rule is intended to be made and give effect, the Inspector General of Registration, in exercise of his power under Section 69(2) of the Act, he is empowered to do so, however, after making such rule, he has to seek for approval of the first respondent and after publishing in the Official Gazette after approval and hence, the second respondent has no power to issue the impugned circular de hors the provisions of the Act and it is wholly beyond the scope of his powers. With these contentions, the learned counsel sought for setting aside the impugned circular issued by the second respondent.
5. On the other hand, learned Addl. Advocate General appearing for the respondents, while highlighting the object in issuing the Circular, would contend that in order to safeguard the interest of the purchasers of the immovable properties from the Power Agents, who indulged in fraudulent registration of documents by suppressing the fact of the death of the Principal who had granted the general power and even after cancellation of the power of attorney and without knowing the real facts, the innocent purchasers are becoming the victims of such fraudulent transactions having invested huge amounts and to prevent such transactions, the impugned Circular came to be issued. He would also contend that there is absolutely nothing wrong in insisting the life certificate of the Principal to be certified by a medical officer along with a photo and there would be no difficult in producing the same since the parties will generally enter into agreements with all the specifications and he pointed out that insistence of life certificate is only with effect from the date of issuance of the Circular (2.2.2013) and not necessary for registration of documents related to general power document registered on or prior to 1.2.2013. He would also contend that the Inspector General has issued Circular only to ascertain whether the Principal of the general attorney is alive for the purpose of registering the document and it is very much essential at present scenario inasmuch as there were many complaints from the public at large, alleging that the power agents are selling the properties by producing fake power of attorney documents and being the supervisory authority under the statute, the Inspector General is under a legal duty and obligation to give effect and follow the object and spirit of the Act by streamlining the registration procedure in order to prevent registration of fraudulent transactions and only for this purpose alone, the impugned Circular has been issued and that they have not laid down any law contrary to the provisions of the Act. Therefore, learned Additional Advocate General would submit that the impugned circular has been issued in conformity with the provisions under the Act which has been impugned in this Writ Petition, does not interfere with the quasi-judicial functions of the registering authorities. With these contentions, the learned Addl. Advocate General sought for dismissal of the writ petitions.
6. Though the learned counsel for the petitioner and the learned Addl. Advocate General argued the matter at length, but none of them have brought to the notice of this Court the orders already passed by the Madurai Bench of this Court regarding the same subject matter of the Writ Petition. Before the Madurai Bench of Madras High Court, already similar writ petitions have been filed, challenging the very Circular, dated 2.2.2013 issued by the Inspector General of Registration in W.P.(MD) Nos.2986 of 2013 and 9382 of 2013. While dealing with the same, a learned single Judge of this Court, has refused to quash the impugned Circular, by issuing the following order, dated 21.3.2014 in W.P. (MD) No.2986 of 2013:
5. In my considered opinion, first of all, the petitioner has no locus standi to file the present writ petition as he is not individually affected by the impugned circular. Though the petitioner has questioned the impugned circular in general, he has not made out any valid ground to quash the same. This writ petition is devoid of merits. Therefore, this writ petition is liable to be dismissed and accordingly dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
7. In W.P.No.9382 of 2013, the Division Bench of the Madurai Bench of Madras High Court has also refused to quash the impugned Circular, with the following observation in its order, dated 13.6.2014 in para 4 and 5:
4. The intention of the above circular is to protect innocent purchaser from being taken for a raid by persons dealing with properties as agents. Ever so many cases have come up before this Court, where the agents sell away the properties, even after the power of attorney is cancelled. Unfortunately, as per the Registration Rules, the documents of conveyance such as sale deeds are registered in Book-1. The deeds of power of attorney are registered in Book-4. Whenever, an encumbrance certificate is applied, it does not use to get reflected in the encumbrance certificate previously. This has created lot of difficulties where unscrupulous persons were taking for a raid innocent purchasers in respect of huge properties. Therefore, the object of the circular is laudable. The power of the Inspector General to issue any such circular is not questioned on any legally tenable grounds by the petitioner. The only ground raised by the petitioner is as to how could a life certificate be taken to be valid for 30 days, when nobody can guarantee the life span of any individual. Human life is so temporary and transient that no one would know the date and time of the final call. Therefore, it is contended by the learned counsel for the petitioner that such a prescription that the life certificate is valid for 30 days, is completely ridiculous.
5. As a point of philosophy what the petitioner says is correct. But man always lives in hope. Everyday we adjourn several cases to a future date promising to hear them on that date. This also falls under the same category as projected by the petitioner. Therefore, we do not see any reason to entertain this writ petition. Hence, it is dismissed. No costs. Consequently, miscellaneous petitions are closed.
8. It is to be noted that the above orders came to be passed by this Court without going into the merits as to the validity of the Circular vis-a-vis the power of the Inspector General of Registration in issuing the said Circular inconformity with the provisions of the Registration Act. Therefore, this Court feels it appropriate to adjudicate the issue involved in this Writ Petition on merits.
9. Part III of the Registration Act, 1908 deals with the Registrable Documents and Section 17 therein, refers to the documents of which registration is compulsory, wherein, no where it is mentioned that the power of attorney documents should be compulsorily registered. However, by exercising its exclusive power to make law, the State of Tamil Nadu, having received the assent of the President on the 24th October, 2012, has made amendments to the Registration Act, 1908 in its application to the State of Tamil Nadu, by issuing a Tamil Nadu Government Gazette published on 02.11.2012, wherein, in Section 17 of the Act in Sub Section (1), for clause (f), the clauses (f) to (i) were substituted, of which, clause (h) specifically insists upon the registration of instruments of Power of Attorney relating to sale of immovable property other than those executed outside India. Apart from this, Section 34-B also came to be included after the existing Section 34-A of the Act, which reads as under:
34-B. Procedure for Registration of document of Power of Attorney relating to immovable property.- Subject to the provisions of this Act, no document of Power of Attorney relating to immovable property shall be registered unless passport size photographs and fingerprints of the principal, the agent and of the identifying witnesses are affixed to the document and the agent has also signed such document.
10. A reading of the above, it is explicit that the instruments of Power of Attorney relating to immovable property other than those executed outside India, should be compulsorily registered and that the passport size photographs and fingerprints of the principal should be affixed to the document.
11. While so, keeping in mind that mere affixture of photographs and fingerprints of the principal is not sufficient to know whether the Principal is alive on the date of presentation of the documents for registration and since it is reported by the public at large that the agents are selling away the properties even after the death of the Principal, the present impugned Circular came to be passed by the Inspector General of Registration insisting upon production of Life Certificate to be certified by a registered medical practitioner or "A" grade officer either from Central or State Government, which would be valid for 30 days.
12. The concept and object of the Circular issued by the Inspector General of Registration, in my opinion, is really laudable and praiseworthy since no doubt, it would certainly prevent the fraudulent transactions where the agents are indulged in selling away the properties to the innocent purchasers despite the death of the Principal and the cancellation of power of attorney.
13. Having heard the learned counsel on either side and on having gone through the entire materials placed before this Court, I could emerge the following points for consideration, viz.,
i) That at every time when the documents are presented for registration based on the power of attorney, the agent has to necessarily contact the Principal and request him to get Life Certificate, which would create difference of opinion between the agent and the principal and taking advantage of this, the principal used to put on terms, which would cause hardship to the agent since he being compelled to act according to the terms of the principal;
ii) That it is appropriate to insist for fitness certificate rather than life certificate as generally, the medical officers used to give fitness certificate and no one can expect the life of a living being since the death is certain with uncertain timings and further the Circular specifies that such Life Certificate will be valid for 30 days and no one can assure that the Principal should alive for coming days from the date of presentation of the Life Certificate and hence, prescribing the validity for 30 days is ludicrous;
iii) That after fulfilling all the terms and on payment of amount demanded by the principal who is the owner of the immovable property, the power agents enter into agreement in the matter of promoting the flats and on completion of project, when the power agents presenting the documents for registration, insisting upon production of life certificate would certainly cause much inconvenience to re-approach the principal and at every time, he may not accept to oblige and give the certificate and if he declines to give, the power agent will be put to irreparable loss and hardship;
iv) That the Circular also insists for production of life certificate of the principal for general power document executed in abroad and it is very difficult for the power agents to get life certificate of the principals who reside in abroad;
v) That by virtue of impugned Circular, the Sub-Registrars will act beyond their power and arbitrarily refuse the registration of documents on the ground of non-production of life certificate of the principal which is contrary to the provisions of the Act.
14. Apart from the above, now the issue arises for consideration is, whether the Inspector General of Registration can issue the Circular beyond the scope of the Act?
15. Before dealing with the issue, it is necessary to refer the statutory provisions relating to the registration of documents presented based on power of attorney.
32. Persons to present documents for registration:- Except in the cases mentioned in [sections 31, 88 and 89] every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,-
(a) by same person executing, or claiming under the same, or in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognizable for purposes of section 32:
(1) For the purpose of section 32, the following Powers - of attorney shall alone be recognized, namely:
(a) If the principal at the time of executing the power of attorney resides in any part of [India] in which this Act is for the time being in force, a power-of attorney executed before and authenticated by the Registrar or Sub Registrar within whose district or sub - district the principal resides:
(b) if the principal at the time aforesaid [resides in any part of India in which this Act is not in force] a power - of - attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in [India] a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate [Indian] Consul or Vice Consul, or representative of the [Central Government]: Provided that the following persons shall not be required to attend at any registration - office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely -
(i) Persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) Persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
Explanation:- In this sub-section "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (X of 1897).
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar, Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to jail in which he is confined and examine him, or issue a commission for his examination.
(4) Any power -of- attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.
16. A reading of the above, it is clear that as per Section 32 of the Act, documents can be presented by the same person executing the documents, or by the agent of such person, representative or assign duly authorised by power-of attorney executed and authenticated. Section 33 of the Act clarifies power of attorney recognizable for purposes of Section 32, namely, if the principal at the time of executing the power of attorney resides in part of India, a power of attorney executed before and authenticated by the Registrar or Sub Registrar within whose jurisdiction, the principal resides; if the principal does not reside in India, a power of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate (Indian) Consul or Vice Consul, or representative of the Central Government. Therefore, after compliance of the requirements mentioned in Section 33 of the Act, if the power of attorney is registered, it has to be construed as genuine and that Sub Section (4) of Section 33 of the Act mentions that no further proof is required if it is duly authenticated in the manner as provided under Section 33(1) to (3) of the Act. Therefore, once such power of attorney is produced along with the documents which are sought to be registered, it is the bounden duty of the registering authority to accept the same and proceed for registration, of-course, on being satisfied of the compliance of the provisions of the Act. Being statutory authority, the registering authority either Registrar or Sub Registrar, cannot act beyond the scope of the statute and more particularly when all the requirements envisaged under the Act for the purpose of registration of documents are complied with, the registering authority has no power to refuse on any ground which is not available under the statute.
17. At this juncture, the learned Additional Advocate General would contend that the Inspector General of Registration, in exercise of his power under Section 69 of the Act which confers upon him to make rule, has issued Circular with avowed object that no document presented based on the power of attorney shall be registered where the principal had passed away and only in order to ascertain whether the Principal who had given power to his agent, is alive, the Circular came to be issued by him and it cannot be faulted with.
18. For better appreciation, Section 69 of the Act is extracted hereunder:
"69. Power of Inspector General to superintend registration offices and make rules.---(1) The Inspector General shall exercise a general superintendence over all the registration offices in the territories under the State Government, and shall have power from time to time to make rules consistent with this Act-- (a) providing for the safe custody of books, papers and documents (aa) providing the manner in which and the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic form under sub-section (1) of section 16-A; (b) declaring what language shall be deemed to be commonly used in each district;
(c) declaring what territorial divisions shall be recognised under section 21;
(d) regulating the amount of fines imposed under sections 25 and 34, respectively;
(e) regulating the exercise of the discretion reposed in the Registering Officer by section 63;
(f) regulating the form in which Registering Officers are to make memoranda of documents;
(g) regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under section 51;
(gg) regulating the manner in which the instruments referred to in sub-section (2) of section 88 may be presented for registration;
(h) declaring the particular to be contained in Indexes Nos.I,II,III and IV, respectively;
(i) declaring the holidays that shall be observed in the Registration Offices; and
(j) generally, regulating the proceedings of the Registrars and Sub-Registrars.
(2) The rules so made shall be submitted to the State Government for approval, and, after they have been approved, they shall be published in the Official Gazette, and on publication shall have effect as if enacted in this Act."
19. A reading of the above, no doubt true that the Inspector General can exercise a general superintendence over all the registration offices in the territories under the State Government, and shall have the power from time to time to make rules consistent with the Act. However, it is to be noted that Section 69(2) clearly states that after making such rule, the Inspector General of Registration has to submit to the State Government for its approval and after such approval by the Government, it has to be published in Official Gazette and thereafter only, the same would have effect as if enacted in the Act. Admittedly, the impugned circular has not been taken under the process of Section 69(2) of the Act. Therefore, instructions given by way of the Circular can at best be construed as executive instructions given by the second respondent/Inspector General of Registration to his subordinates, viz., all the Deputy Inspector General of Registration and all the District Registrars. It is well settled law that the executive instructions issued for guidance by the superintending authority to be followed by his subordinates, do not have the force of law and therefore, in my considered opinion, such instructions which are admittedly not in consonance with the statute, cannot be insisted upon to be complied with by the citizens when they abide by the provisions of the statute. Therefore, as already held above, when the documents are presented for registration based on the general power of attorney by the parties after complying with all the requirements under the statute, they cannot be surprised and compelled to comply with the requirements which are unknown to the statute as admittedly, production of life certificate has not been prescribed as a condition in the Act or the Rules thereunder for effecting the registration of the documents based on power of attorney and the registering authority, by acting upon the impugned circular, cannot refuse the registration of the said documents for want of life certificate of the principal and such insistence is contrary and inconsistent to the provisions of the statute, which certainly cannot be sustained. Therefore, the instructions issued under the impugned Circular by the Inspector General of Registration, which do not have the force of law and do not have legal sanctity, in my opinion, are beyond the scope of the statute and it would certainly whittle down the provisions of the statute. Therefore, the Inspector General of Registration cannot sit over the statute and dictate the terms. In fine, it can be said that the Inspector General of Registration cannot travel beyond the scope of the statute and he cannot issue the Circulars beyond the scope and inconsistent with the provisions of the statute.
20. Generally power of attorney executed between the relations, without any consideration thereof, may not have complications and no disputes may arise therefrom. However, the deed of power of attorney will play a vital role in the field of real estate transactions, without which, the realtors, builders and the flat promoters cannot develop the properties. They used to enter into an agreement of understanding with the principal who is the land owner to develop the property by promoting flats and after such development to sell the flats. In this regard, on payment of a considerable payment towards the land value to the Principal or on sharing of flats, they will obtain power of attorney from the Principal. These kind of power of attorneys coupled with valuable consideration, cannot be revoked even in the event the Principal dies whilst the property is in the process of being developed and power agent is entitled to proceed with the transaction.
21. However, the impugned Circular insisted upon production of life certificate of the principal in respect of all the documents presented based on power of attorney irrespective irrevocable attorneys also. In this regard, it is pertinent to note that the in respect of the power of attorneys where the power agent has interest in the subject matter of agency, production of life certificate of the principal does not at all arise inasmuch as such power of attorney is irrevocable. In the matter of power attorneys where the authority coupled with interest are irrevocable and even if the principal intends to terminate or cancel the power of attorney, he cannot do so.
22. In fact, Power of Attorney Act does not state when a power of attorney is irrevocable. However, Section 202 of the Contract Act lays down the rule that authority coupled with interest is irrevocable. It means that the authority cannot be revoked where the agent has an interest in the subject matter of the agency. It can be explained with the following illustrations, viz.,
i) A gives authority to B to sell As land and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor it can be terminated by his insanity or death.
ii) A being the land owner, having received a valuable consideration, authorises B, a flat promoter to develop the land and promote flats and sell away the same by sale deeds. Such a power of attorney given for a valuable consideration and where the agent himself has interest, cannot be revoked so long as the agent has interest or his obligation is discharged.
23. The Supreme Court of India, in the case of Seth Loon Karan Sethiya v. Ivan E. John, AIR 1969 SC 73, held that- where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked.
24. Therefore, this Court is of the considered view that in respect of the above said power of attorneys where the agency is created for valuable consideration and where the authority is coupled with interest, which are irrevocable nature, production of life certificate of the principal does not at all arise and there is no need for the agents to produce the same. After development of the property, the power agent cannot find the buyers at a time within a period of one month to sell away the flats, in order to register the sale deeds. Therefore, there is no justification to insist upon production of life certificate for every spell of one month and if the agent approaches the principal for such certificate, there is every likelihood of demanding money or the principal riding over the agent.
25. Before parting, this Court place on record its appreciation towards the steps taken by the Inspector General of Registration in issuing the impugned Circular in order to prevent the fraudulent registration of the documents by the illegal power agents and as already stated supra, the object of the impugned Circular is really laudable and praiseworthy, but in the absence of any legal sanctity attached to the impugned Circular, this Court is unable stretch upon its hands to protect the said Circular. However, it is needless to mention that the Inspector General of Registration is empowered to make rule by virtue of Section 69(2) of the Act and enact the same after getting approval from the State Government and on its publication. While doing so, the Inspector General of Registration shall consider the circumstances under which the production of life certificate itself does not arise as discussed in foregoing paragraphs 21 to 25. Till such time the Rule is framed, the registering authority shall act as per the provisions of the Act.
For the foregoing reasons, the Writ Petitions are allowed and the impugned Circular, dated 02.02.2013 is hereby set aside. No costs. Consequently, connected MPs are closed.
1. The Secretary to Government, Registration Department, Secretariat, Fort George,
2. The Inspector General of Registration, 100, Santhome High Road, Pattinapakkam, Chennai-600 028.