- (1.) This reference to the Full Bench has been occasioned by a referring order of a learned Single Judge dated 2 December 2015. The issue which has been referred for adjudication by the Full Bench is as follows: "Whether a writ petition under Article 226 of the Constitution can be filed by a power of attorney holder."
(2.) The meaning of a power of attorney The Powers-of-Attorney Act, 1882 (Act) was enacted to amend the law relating to powers of attorney. Section 1-A of the Act provides that a power of attorney includes any instrument empowering a specified person to act for and in the name of the person executing it. Section 2 stipulates that the donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, by the authority of the donor of the power, and every instrument or thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
(3.) The true meaning of a power of attorney finds elaboration in a judgment of the Supreme Court in State of Rajasthan Vs Basant Nahata, 2005 12 SCC 77 where the Supreme Court held as follows: "13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well-known, a document of convenience. * * * 52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed herein before, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.";