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Judgment
D. Murugesan, J.—The question raised in this writ petition is as to whether the first respondent C.M.D.A could insist for registered power
of attorney when an application is filed through a power of attorney seeking for regularisation of the building plan or not ?
The petitioners 1 to 5 are holders of power of attorney and petitioners 6 to 25 are represented through Power of Attorney viz., the petitioners 1
to 5. The issue relates to the construction of building in Door No. 18/4, New Mahabalipuram Main road, Thiruvanmiyur, Chennai 41. A planning
permission was obtained from C.M.D.A on 2.9.1993 for construction of building. There were some deviations in the constructions. Hence a
regularisation application was made on 31.10.2000 by one of the occupants. That application came to be rejected by the respondents in their
order dated 12.8.2002 on the ground that the applicant should submit 5 sets of revised plan; attested copy of the earlier approved plan; ownership
documents, NOC from the Director of Fire Service and the Original copy of the receipt dated 31.12.2000. The deficiencies were rectified and the
application was resubmitted. But the same was not considered. Hence, writ petition in W.P. No. 2424 of 2007 came to be filed and the Division
Bench by order dated 22.1.2007 directed the C.M.D.A to dispose of the application as the building was said to be constructed prior to
28.2.1999. It appears that in spite of the said direction no orders were passed. Hence, the applicant had again approached this Court by way of
being mentioned in W.P. No. 2184 of 2007 for a direction to the respondents to issue orders of regularisation. That petition came to be disposed
of on 16.4.2007 with a direction to the respondent to pass orders within three months from that date duly taking into consideration of the earlier
order dated 22.1.2007. Subsequently, by an order dated 9.7.2007 the application was rejected on the ground that the applicant had individually
applied for regularisation of the entire building premises and the individual flat owner or owner of the part of the building may not have any right to
submit an application for regularisation under the Regularisation 1999 Scheme for the entire building. That order was challenged before this Court
in W.P. No. 35102 of 2007 and again the Division Bench by order dated 19.11.2007 disposed of the writ petition in view of the submission of the
learned Counsel for C.M.D.A that the application made by the petitioner for regularisation would be considered on its own merits and appropriate
orders would be passed in consultation with the Management committee within a period of two months from the said date.
In spite of the above direction no orders were passed by the respondent. Again this Court by another order dated 10.1.2008 directed the
respondent to consider the application for regularisation. Pursuant to the above direction, the respondent Member Secretary C.M.D.A has passed
the order dated 6.11.2008 rejecting the application on the ground that the Monitoring Committee has resolved to reject the regularisation
application as the building is owned by several others holding undivided shares of land and they have not given any registered power of attorney in
favour of the applicant. This order is put in issue in the present writ petition.
We have heard Mr. M. Krishnappan, learned Senior Counsel appearing for the petitioner together with Mr. S. Sundaresan, learned Counsel on
record and Mr. C. Kathiravan, learned Counsel appearing for the respondents.
The only question that arises for consideration is whether the respondents would be justified in rejecting the application for regularisation of the
building plan solely on the ground that the application was made by the power holders and the same was not registered.
Section 17 of the Registration Act 1908 provides for the compulsory registration of documents. It categorises the following documents to be
compulsorily registered viz.,
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign limit or extinguish, whether in present or in future any
right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration,
assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award
purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards to or in immovable property
Provided that the State Government may by order published in the Official Gazette, exempt from the operation of this sub-section any leases
executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not
exceed fifty rupees.
Section 18 relates to the documents of which registration is optional. Section 17 contemplates compulsory registration of documents whenever
some interest over immovable property or some non-testamentary instruments transferring or assigning any decree or order of a court. None of the
clauses contemplated under that Section requires a registration of a power of attorney, which does not convey or confer any title or interest
whether vested or contingent.
As against Section 17, Section 18 gives an option to the executant of a document to register the documents. Even in those clause a power of
attorney may be registered in respect of the following documents:
(a) instruments (other than instruments of gifts and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present
or in future, any right, title or interest whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt of payment of any consideration on account of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year and leases exempted u/s 17;
(cc) instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to
create, declare, assign, limit or extinguish, whether in present or in future anyright, title or interest, whether vested or contingent of a value less than
one hundred rupees to or in immovable property
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right title or interest to or in movable
property;
Sub-section (f) of Section 18 of course gives an option to the executants to register all other documents which are not required to be compulsorily
registered u/s 17.
The document in question is in respect of an authorisation to some of the purchasers in an apartment seeking for regularisation. The document
authorises the power holders to do only the following acts:
To apply with Corporation of Madras or Madras Metropolitan Development Authority (MMDA) or any other appropriate authority for the
regularisation of the building erected in the schedule mentioned property, to apply for revised approvals and also apply and submit plans as
required by the statutory authorities.
To apply for permits for obtaining plans wherever necessary and where required under the law and regulations and rules for the Schedule
mentioned property.
To make applications and to sign documents in connection with above objects and purposes set out in Clause 1 and 2.
To remit and withdraw monies from MMDA and other authorities in connection with or incidental to any of the purposes and objections set out
in the above clauses and issue valid receipt thereof.
To appear and act before all authorities in all courts either original or appellate, in all registration or other offices of the government or any local
authority in respect of the property more fully described in schedule hereunder.
To file suits of any kind on our behalf of to safeguard our rights or claims to the schedule mentioned property.
For the purpose GENERALLY to do all acts, necessary or expedient.
A perusal of the above authorisation, in our opinion, does not indicate any transfer of title or interest or any other matter covered u/s 17 and for
that matter even u/s 18 of the Registration Act. That apart the power of attorney has been notarised by one S. Selvam, Advocate and Notary,
Chennai. Section 85 of the Indian Evidence Act contemplates a presumption to be drawn by court as to certain powers of attorney. By that
section the court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by
a Notary Public was so executed and authenticated. Certainly the power of attorney in question would be considered to be a valid and legal
document for the purpose of making an application for regularisation and such application cannot be rejected solely on the ground that it is not
registered.
In this context we may also refer to the judgment of the Supreme Court in Syed Abdul Khader Vs. Rami Reddy and Others, wherein, while
dealing with an incidental submission it has been held thus that a General Power of Attorney is not a compulsorily registrable document.
A learned single Judge of this Court in the judgment reported in 2007 4 MLJ 819 (Parthi Balaiah Chetty (Deceased) and Ors. v. D. Krishna
Rao and Ors.) had an occasion to consider a similar question. In that case it was specifically argued that under Clause 5 and 6 of the deed of
power of attorney an interest in immovable property is created and that therefore the power of attorney is inadmissible inasmuch as it has not been
registered.
While considering the said submission, the leaned Judge held that Clauses 5 and 6 of the power of attorney do not create any interest in
immovable property. It is further held even on the question of compulsory registration of the power of attorney which is not covered u/s 17, that
only when the document creates an interest in immovable property, it is compulsorily registrable.
The learned Counsel appearing for the CMDA has submitted that though there is no specific provision under the Building regulations requiring
only a registered power of attorney to be filed for the purpose of making an application for regularisation he would produce an office order No.
18/2007 dated 25.5.2007. By that office Order, the Member Secretary had observed as follows:
It has been brought to notice that the Notarised Power of Attorney in original are presently being accepted while processing PPA. In view of
recent development, with reference to certain cases of misuse of Power of Attorney, it is hereby ordered that henceforth Registered Power of
Attorney shall be insisted for all Planning permission applications.
By placing reliance on the office order, the learned Counsel for CMDA would submit that the insistence of registered power of attorney is only
to avoid misuse of such documents by the applicants. In our considered opinion such an office order has no legal sanctity in the absence of any
provision empowering the Member Secretary to impose such a restriction. The question as to whether a power of attorney should be registered or
not should be considered only with reference to the provisions of Section 17 and 18. If the office order 25.5.2007 is to be accepted, it would
result in adding something into the provisions of the Act making compulsory registration even in case where a document of power of attorney may
not be brought u/s 17 of the Act.
Moreover the reason of mis-use cannot be a ground to insist for a registered power of attorney as in this case instead of all the owners of
apartments individually applying for regularisation, they have joined together and only authorised 1 to 5 petitioners to apply for regularisation. There
cannot be any exception to be taken when all the owners joined together and for their convenience authorised five owners of the very same
apartments for the regularisation of the building.
Hence, the impugned order rejecting the application for regularisation solely on the ground that the power of attorney had not been registered
cannot be sustained. Accordingly the same is set aside. The application for regularisation of the planning permission is pending from 31.10.2000.
The Member Secretary C.M.D.A is directed to consider the application submitted by the power of attorney and pass orders within twelve weeks
from the date of receipt of copy of this order or production of the same by the petitioners.
With the above direction, the writ petition is allowed. Consequently, the connected M.Ps are closed. No costs.