High Court · 2009

In the High Court of Judicature at MadrasDated:- 07.07.2009Coram :-The Honourable Mr.Justice D.MURUGESAN andThe Honourable Mr.Justice K.VENKATARAMANW.P.No.28580 of 2008M.P.Nos.1 to 3 of 20081.Mrs.B.Maragathamani2.P.S.Ganesan3.Saradha Venkatraman4.Suresh Jude Dean Vaidyanathan5.Kamakshi Sundaram6.Ramaniyam Real Estates Pvt.Ltd.,7.M.Vijayalakshmi8.R.Sharmila9.K.Subramaniam10.K.Soundhar Rajan11. K.Soundhar Rajan12. M/s.Baywater Farms (P) Ltd.,13. Mrs.Lakshmi Sivaramakrishnan14.Dr.SheelaDevi15.R.Kalyana Sundaram16.K.Sundar Raman17.Rajendar Ranganath18.P.N.Jayanth19.Subbiah Lakshmanan20.G.Premnath21.Jairam K.Gaglani22.S.Rajamani23.S.Usha Shankar24.S.Kamala25.S.SundaramPetitioners 6 to 25 arerepresented by petitioners1 to 5 as their Power of Attorneyagents having residence atNo.11, Sruthi ApartmentsSecond Main RoadGandhi Nagar, AdyarChennai 20.... Petitioners Vs. https://hcservices.ecourts.gov.in/hcservices/

1. The Member SecretaryChennai Metropolitan Development AuthorityNo.1, Gandhi Irwin RoadEgmore,Chennai 8.2. The Monitoring CommitteeRep. By its Vice Chair PersonCMDA, Gandhi Irwin SalaiEgmore,Chennai 8.... RespondentsPrayer: Writ Petition filed under Article 226 of The Constitution ofIndia praying to issue a writ of certiorarified mandamus to call forthe records relating to the first respondent vide his impugnedletter No. REG/C6/52573/2000 dated 6.11.2008 quash the same anddirecting the respondents to issue orders of Regularisation as pertheir Letter No. REG/C6/52573/2000 dated 12.8.2002 and release theregularisation approval plan to the petitioner's building situatedin Door No.18/4, New Mahabalipuram Main road, Thiruvanmiyur, Chennai41. For Petitioners :- Mr.M.Krishnappan, Senior Counsel for Mr.S.Sundaresan For Respondents :- Mr.C.KathiravanORDER (Order of the Court was made by D.MURUGESAN J.) The question raised in this writ petition is as to whetherthe first respondent C.M.D.A could insist for registered power ofattorney when an application is filed through a power of attorneyseeking for regularisation of the building plan or not ?2. The petitioners 1 to 5 are holders of power of attorney andpetitioners 6 to 25 are represented through Power of Attorneyviz., the petitioners 1 to 5. The issue relates to the constructionof building in Door No.18/4, New Mahabalipuram Main road,Thiruvanmiyur, Chennai 41. A planning permission was obtainedfrom C.M.D.A on 2.9.1993 for construction of building. There weresome deviations in the constructions. Hence a regularisationapplication was made on 31.10.2000 by one of the occupants. Thatapplication came to be rejected by the respondents in their orderdated 12.8.2002 on the ground that the applicant should submit 5sets of revised plan ; attested copy of the earlier approved plan ;ownership documents, NOC from the Director of Fire Service and theOriginal copy of the receipt dated 31.12.2000. The deficiencieswere rectified and the application was resubmitted. But the same wasnot considered. Hence, writ petition in W.P.No.2424 of 2007 cameto be filed and the Division Bench by order dated 22.1.2007 directed https://hcservices.ecourts.gov.in/hcservices/ the C.M.D.A to dispose of the application as the building was saidto be constructed prior to 28.2.1999. It appears that in spite ofthe said direction no orders were passed. Hence, the applicant hadagain approached this Court by way of being mentioned in W.P.No.2184 of 2007 for a direction to the respondents to issue orders ofregularisation. That petition came to be disposed of on 16.4.2007with a direction to the respondent to pass orders within threemonths from that date duly taking into consideration of the earlierorder dated 22.1.2007. Subsequently, by an order dated 9.7.2007the application was rejected on the ground that the applicant hadindividually applied for regularisation of the entire buildingpremises and the individual flat owner or owner of the part of thebuilding may not have any right to submit an application forregularisation under the Regularisation 1999 Scheme for the entirebuilding. That order was challenged before this court inW.P.No.35102 of 2007 and again the Division Bench by order dated19.11.2007 disposed of the writ petition in view of the submissionof the learned counsel for C.M.D.A that the application made by thepetitioner for regularisation would be considered on its own meritsand appropriate orders would be passed in consultation with theManagement committee within a period of two months from the saiddate.3. In spite of the above direction no orders were passed by therespondent. Again this court by another order dated 10.1.2008directed the respondent to consider the application forregularisation. Pursuant to the above direction, the respondentMember Secretary C.M.D.A has passed the order dated 6.11.2008rejecting the application on the ground that the MonitoringCommittee has resolved to reject the regularisation application asthe building is owned by several others holding undivided sharesof land and they have not given any registered power of attorney infavour of the applicant. This order is put in issue in the presentwrit petition. 4. We have heard Mr.M.Krishnappan, learned Senior Counselappearing for the petitioner together with Mr. S.Sundaresan,learned counsel on record and Mr.C.Kathiravan, learned counselappearing for the respondents. 5. The only question that arises for consideration is whetherthe respondents would be justified in rejecting the application forregularisation of the building plan solely on the ground that theapplication was made by the power holders and the same was notregistered. 6. Section 17 of the Registration Act 1908 provides for thecompulsory registration of documents. It categorises the followingdocuments to be compulsorily registered viz., https://hcservices.ecourts.gov.in/hcservices/ (a) instruments of gift of immovableproperty; (b) other non-testamentary instruments whichpurport or operate to create, declare, assign limitor extinguish, whether in present or in future anyright, title or interest, whether vested orcontingent, of the value of one hundred rupees andupwards to or in immovable property;(c) non-testamentary instruments whichacknowledge the receipt or payment of anyconsideration on account of the creation,declaration, assignment, limitation or extinction ofany such right, title or interest; and(d) leases of immovable property from year toyear, or for any term exceeding one year, orreserving a yearly rent;(e) non-testamentary instruments transferringor assigning any decree or order of a court or anyaward when such decree or order or award purports oroperates to create, declare, assign, limit orextinguish, whether in present or in future, anyright, title or interest, whether vested orcontingent, of the value of one hundred rupees andupwards to or in immovable propertyProvided that the State Government may by orderpublished in the Official Gazette, exempt fromtheoperation of thissub-section any leases executedin any district, or part of a district, the termsgranted by which do not exceed five years and theannual rents reserved by which do not exceed fiftyrupees. 7. Section 18 relates to the documents of which registrationis optional. Section 17 contemplates compulsory registration ofdocuments whenever some interest over immovable property or somenon-testamentary instruments transferring or assigning any decree ororder of a court. None of the clauses contemplated under thatSection requires a registration of a power of attorney, which doesnot convey or confer any title or interest whether vested orcontingent. 8. As against Section 17, Section 18 gives an option to theexecutant of a document to register the documents. Even in thoseclause a power of attorney may be registered in respect of thefollowing documents:- https://hcservices.ecourts.gov.in/hcservices/ (a) instruments (other than instruments ofgifts and wills) which purport or operate tocreate, declare, assign, limit or extinguish,whether in present or in future, any right, titleor interest whether vested or contingent, of avalue less than one hundred rupees, to or inimmovable property;(b) instruments acknowledging the receiptof payment of any consideration on account ofthe creation, declaration, assignment, limitationor extinction of any such right, title orinterest;(c) leases of immovable property for anyterm not exceeding one year and leases exemptedunder Section 17;(cc) instruments transferring or assigningany decree or order of a court or any award whensuch decree or order or award purports oroperates to create, declare, assign, limit orextinguish, whether in present or in futureanyright, title or interest, whether vested orcontingent of a value less than one hundredrupees to or in immovable property(d) instruments (other than wills) whichpurport or operate to create, declare, assign,limit or extinguish any right title or interestto or in movable property;Sub-section (f) of Section 18 of course gives an option to theexecutants to register all other documents which are not required tobe compulsorily registered under Section 17.9. The document in question is in respect of an authorisationto some of the purchasers in an apartment seeking forregularisation. The document authorises the power holders to doonly the following acts :-1. To apply with Corporation of Madrasor Madras Metropolitan Development Authority(MMDA) or any other appropriate authority forthe regularisation of the building erected inthe schedule mentioned property, to apply forrevised approvals and also apply and submitplans as required by the statutoryauthorities. https://hcservices.ecourts.gov.in/hcservices/

2. To apply for permits for obtainingplans wherever necessary and where requiredunder the law and regulations and rules forthe Schedule mentioned property.3. To make applications and to signdocuments in connection with above objectsand purposes set out in clause 1 and 2.4. To remit and withdraw monies fromMMDA and other authorities in connection withor incidental to any of the purposes andobjections set out in the above clauses andissue valid receipt thereof.5. To appear and act before allauthorities in all courts either original orappellate, in all registration or otheroffices of the government or any localauthority in respect of the property morefully described in schedule hereunder.6. To file suits of any kind on ourbehalf of to safeguard our rights or claims tothe schedule mentioned property.7. For the purpose GENERALLY to do allacts, necessary or expedient.10. A perusal of the above authorisation, in our opinion, doesnot indicate any transfer of title or interest or any other mattercovered under Section 17 and for that matter even under Section 18of the Registration Act. That apart the power of attorney has beennotarised by one S.Selvam, Advocate and Notary, Chennai. Section 85of the Indian Evidence Act contemplates a presumption to be drawnby court as to certain powers of attorney. By that section thecourt shall presume that every document purporting to be a power ofattorney and to have been executed before and authenticated by aNotary Public was so executed and authenticated. Certainly thepower of attorney in question would be considered to be a valid andlegal document for the purpose of making an application forregularisation and such application cannot be rejected solely on theground that it is not registered.11. In this context we may also refer to the judgment of theSupreme Court in SYED ABDUL KHADER VS. RAMI REDDY AND OTHERS (AIR1979 SC 553) wherein, while dealing with an incidental submissionit has been held thus that a General Power of Attorney is not acompulsorily registrable document. https://hcservices.ecourts.gov.in/hcservices/

12. A learned single Judge of this court in the judgmentreported in 2007 4 MLJ 819 (PARTHI BALAIAH CHETTY (Deceased) ANDOTHERS VS. D.KRISHNA RAO AND OTHERS) had an occasion to consider asimilar question. In that case it was specifically argued thatunder clause 5 and 6 of the deed of power of attorney an interest inimmovable property is created and that therefore the power ofattorney is inadmissible inasmuch as it has not been registered. 13. While considering the said submission, the leaned Judgeheld that clauses 5 and 6 of the power of attorney do not createany interest in immovable property. It is further held even on thequestion of compulsory registration of the power of attorney whichis not covered under Section 17, that only when the documentcreates an interest in immovable property, it is compulsorilyregistrable. 14. The learned counsel appearing for the CMDA has submittedthat though there is no specific provision under the Buildingregulations requiring only a registered power of attorney to befiled for the purpose of making an application for regularisation hewould produce an office order No. 18/2007 dated 25.5.2007. By thatoffice Order, the Member Secretary had observed as follows:- "It has been brought to notice that the NotarisedPower of Attorney in original are presently beingaccepted while processing PPA. In view of recentdevelopment, with reference to certain cases of misuseof Power of Attorney, it is hereby ordered thathenceforth Registered Power of Attorney shall beinsisted for all Planning permission applications".15. By placing reliance on the office order, the learnedcounsel for CMDA would submit that the insistence of registeredpower of attorney is only to avoid misuse of such documents by theapplicants. In our considered opinion such an office order has nolegal sanctity in the absence of any provision empowering the MemberSecretary to impose such a restriction. The question as to whether apower of attorney should be registered or not should be consideredonly with reference to the provisions of Section 17 and 18 . If theoffice order 25.5.2007 is to be accepted, it would result in addingsomething into the provisions of the Act making compulsoryregistration even in case where a document of power of attorney maynot be brought under Section 17 of the Act.16. Moreover the reason of mis-use cannot be a ground toinsist for a registered power of attorney as in this case instead ofall the owners of apartments individually applying forregularisation, they have joined together and only authorised 1 to5 petitioners to apply for regularisation. There cannot be anyexception to be taken when all the owners joined together and for https://hcservices.ecourts.gov.in/hcservices/ their convenience authorised five owners of the very same apartmentsfor the regularisation of the building. 17. Hence, the impugned order rejecting the application forregularisation solely on the ground that the power of attorney hadnot been registered cannot be sustained. Accordingly the same isset aside. The application for regularisation of the planningpermission is pending from 31.10.2000. The Member Secretary C.M.D.Ais directed to consider the application submitted by the power ofattorney and pass orders within twelve weeks from the date ofreceipt of copy of this order or production of the same by thepetitioners.18. With the above direction, the writ petition is allowed.Consequently, the connected M.Ps are closed. No costs. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar krr/To1. The Member SecretaryChennai Metropolitan Development AuthorityNo.1, Gandhi Irwin RoadEgmore,Chennai 8.2.The Vice Chair PersonThe Monitoring CommitteeCMDA, Gandhi Irwin SalaiEgmore,Chennai 8.+ 1 cc to Mr.C.Kathiravan,Advocate,SR.29307+ 1 cc to Mr.S.Sundaresan,Advocate,SR.29283W.P.No.28580 of 2008RSY(CO)EM/11.8.09