Sunday 30 November 2014

Whether General power of attorney should be disclosed under RTI?


  

GPA is a public document because the  grantee has to use it to convince any  prospective purchaser and it is also in the interest of that prospective purchaser to verify the veracity of the documents including GPA before finalizing the deal. Because the purpose of  GPA is to authorize another person to deal with the others i.e., to lease out, sale or mortgage  etc, it is an open document and after being registered it is put in public domain, and when  transferred to Delhi Archives, it continued to be in public domain. The RTI Act made it obligatory to disclose any document which is held by public authority unless  exemptions as mentioned in Section 8 are attracted. Assuming that Section 57 Registration Act  1908 authorizes them to deny the access to GPA, which the officers from Sub ­Registrar office are regularly raising as defence, the Commission would like to reiterate that as per section 22 of Right  to Information Act 2005, the 156 year old law has to yield to 2005 law which Parliament wanted to 
override the other laws. The Commission recommends the Respondent Public Authority to inform all the PIOs and officers registering the transactions on landed property to abide by the RTI Act  and   not   to   quote   obsolete   British   relic   Registration   Act,   1908.   As   the   age­old   maxim   says 
ignorance of law is no excuse, the respondent authority cannot plead ignorance of this law any  more as nine years passed after RTI Act came into existence. Any effort to quote British law to 
deny   the   copy   of   GPA   or   any   other   document   which   has   to   be   given   under   RTI   Act   will   be  considered as clever ploy to deny the information and the Commission warns the public authority  that this also will amount to violation of RTI Act attracting the penalties under Section 20 RTI Act. 
The office of PIO should desist from using the archaic law and First Appellate Authority cannot  reject first appeals on this ground. 

CENTRAL INFORMATION COMMISSION

File No.CIC/DS/A/2013/001968­SA


Shri Manish Bansal  Vs Delhi Archives      GNCTD, Delhi

Date of decision : 01-­09-­2014
  Information Commissioner :
Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)



       
      
FACTS
2.             Through  his  RTI   application   dated   25­4­2013,   the  appellant   is   seeking  copies   of 
documents mentioned at Sl.No.3,4 and 5 of the RTI application regarding the GPAs dated 23­
1­1981, 12­6­1981, relating to a property at Laxmi Nagar,  executed by Mr. Krishan Lal in favor 
of Urmila Gupta etc.  PIO has given reply by his letter dated 6­5­2013.   The appellant made 
first   appeal   before   the   FAA,   who,   by   his   order   dated   17­7­2013   upheld   the   information 
furnished by the PIO and disposed of the appeal, saying that the appellant cannot be issued 
the documents as the Department of Delhi Archives is only custodian of records whereas the 
creating agency of records is another office, which is sub­Registrar Office and the information 
can only be given to a person executing or claiming under the document.   Claiming that 
complete information was not received from the respondent authority, the appellant has filed 
2nd appeal before the Commission. 
Decision:
3.         Heard the submissions made by the respondent officer.     The Commission does not 
accept the stand taken by the respondent authority that they were only custodians and thus 
they could not give copies of the documents. Once they hold the information, the RTI Act 
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mandates that they should share it with RTI applicants unless the RTI Act exempts them from 
disclosure. The contention of the respondents, Department of Delhi Archives in this case, and 
that of Department of Sub­Registrar or Registrar generally before this Commission was that 
the Registration Act that the Registration Act does not require them to share a copy of GPA or 
the Will under Section 57, which says: 
57. Registering officers to allow inspection of certain books and indexes, and to 
give certified copies of entries.—
(1) Subject to the previous payment of the fees payable in that behalf, the 
Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all 
time open to inspection by  any person  applying to inspect the same; 
and, subject to the provisions of section 62, copies  of entries  in such 
books shall be given to all persons applying for such copies. 
(2) Subject to the same provisions, copies of entries in Book No. 3 and in 
the   Index  relating   thereto   shall   be  given   to  the  persons  executing   the 
documents to which such entries relate, or to their agents, and after the 
death of the executants (but not before) to any person applying for such 
copies. 
(3) Subject to the same provisions, copies of entries in Book No. 4 and in 
the  Index  relating  thereto  shall  be  given  to  any  person  executing  or 
claiming under the documents to which such entries respectively refer, 
or to his agent or representative. 
(4) The requisite search under this section for entries in Book Nos. 3. and 
4 shall be made only by the registering officer. 
(5) All copies given under this section shall be signed and sealed by the 
registering officer, and shall be admissible for the purpose of proving the 
contents of the original documents. 
51. Register­books to be kept in the several offices.—
(1)
The following books shall be kept in the several offices hereinafter named, namely:— "A
—In all registration offices—" Book 1, “Register of non­testamentary documents relating to 
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immovable property”. Book 2, “Record of reasons for refusal to register”. Book 3, “Register of wills 
and authorities to adopt”, and Book 4, “Miscellaneous Register”. B—In the offices of Registrars— 
Book 5, “Register of deposits of wills”.
(2) In Book I shall be entered or filed all documents or memoranda 
registered under Sections 17, 18, and 89, which relate to immovable 
property, and are not wills.
(3) In Book 4 shall be entered all documents registered under clauses 
(d) and (f) of Section 18 which do not relate to immovable property.
(4) Nothing in this section shall be deemed to require more than one 
set of books where the office of the Registrar has been amalgamated 
with the office of a Sub­Registrar.
This is the ‘right to information’ as prescribed under Registration Act, 1908.
4.
A  general   power   of   attorney  is   an   instrument   wherein   granter   confers   authority   on 
grantee to act or transact on his behalf. This power continues during the pleasure of granter.  GPA 
does not confer title on the grantee. In spite of GPA, the owner/granter can transfer his property to 
any other person, other than GPA holder. Thus the GPA based transactions or transfer of property 
will have serious risk of multiple transactions on same property. 
5.           As an agent, an attorney­in­fact is a fiduciary for the principal, so the law requires an 
attorney­in­fact to be completely honest with and loyal to the principal in their dealings with each 
other.   Under   the  common   law,   a   power   of   attorney   becomes   ineffective  if   its   grantor   dies   or 
becomes   "incapacitated,"   meaning   unable   to   grant   such   a   power,   because   of   physical   injury 
or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney 
will continue to be effective even if the grantor becomes incapacitated.
The three­judge bench of Justices R V Raveendran, A K Patnaik and H L Gokhale  of Supreme 
Court in Suraj Lamps & Industries Pvt Ltd v State of Haryana and another  [Special Leave 
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Petition No 13917 of 2009 ]decided on 11.10.2011 with regard to SA/GPA/WILL had observed as 
follows :
“3. The earlier order dated 15.5.2009, noted the ill­effects of such SA/GPA/WILL transactions 
(that is generation of black money, growth of land mafia and criminalization of civil disputes) as 
under:
Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even 
when there is no bar or prohibition regarding transfer or conveyance of such property, 
by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds 
of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties 
without any public record of the transactions. The process enables them to hold any 
number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges 
either deliberately or on wrong advice. Persons who deal in real estate resort to these 
methods to avoid multiple stamp duties/registration fees so as to increase their profit 
margin.
Whatever   be   the   intention,   the   consequences   are   disturbing   and   far   reaching,   adversely 
affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of 
income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such 
revenue to the government and the public. Secondly, such transactions enable persons with 
undisclosed wealth/income to invest their black money and also earn profit/income, thereby 
encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the 
market value increases, many vendors (who effected power of attorney sales without 
registration) are tempted to resell the property taking advantage of the fact that there is 
no registered instrument or record in any public office thereby cheating the purchaser. 
When the purchaser under such `power of attorney sales' comes to know about the vendor's 
action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his 
rights.   On   the   other   hand,   real   estate   mafia   many   a   time   purchases   properties   which   are 
already subject to power of attorney sale and then threaten the previous `Power of Attorney 
Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly 
lead to growth of real estate mafia and criminalization of real estate transactions.

......
Advantages of Registration
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10. In the earlier order dated 15.5.2009, the objects and benefits of registration was explained 
and we extract them for ready reference:
....
Registration   provides   safety   and   security   to   transactions   relating   to   immovable 
property,   even   if   the   document   is   lost   or   destroyed.   It   gives   publicity   and   public 
exposure   to   documents   thereby   preventing   forgeries   and   frauds   in   regard   to 
transactions   and   execution   of   documents.  Registration   provides   information   to 
people who may deal with a property, as to the nature and extent of the rights 
which   persons   may   have,   affecting   that   property.   In   other   words,   it   enables 
people   to   find   out   whether   any   particular   property   with   which   they   are 
concerned, has been subjected to any legal obligation or liability and who is or 
are the person/s presently having right, title, and interest in the property. It gives 
solemnity   of   form   and   perpetuate   documents   which   are   of   legal   importance   or 
relevance   by   recording   them,   where   people   may   see   the   record   and   enquire   and 
ascertain what the particulars are and as far as land is concerned what obligations 
exist with regard to them. It ensures that every person dealing with immovable property 
can rely with confidence upon the statements contained in the registers (maintained 
under the said Act) as a full and complete account of all transactions by which the title 
to the property may be affected and secure extracts/copies duly certified.
Registration of documents makes the process of verification and certification of title 
easier and simpler. It reduces disputes and litigations to a large extent.

.....
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or 
interest   in   an  immovable   property.   The   power  of   attorney  is  creation   of   an  agency 
whereby the grantor authorizes the grantee to do the acts specified therein, on behalf 
of grantor, which when executed will be binding on the grantor as if done by him (see 
Section 1A and   Section 2 of   the   Powers   of   Attorney   Act,   1882).   It   is   revocable   or 
terminable at any time unless it is made irrevocable in a manner known to law. Even an 
irrevocable attorney does not have the effect of transferring title to the grantee. In State 
of Rajasthan v. Basant Nehata  2005 (12) SCC 77 this Court held:
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 favor of the agent. The agent 
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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.
Execution   of   a   power   of   attorney   in   terms   of   the   provisions   of   the 
Contract Act as also the Powers­of­Attorney Act is valid. A power of 
attorney, we have noticed hereinbefore, is executed by the donor so as 
to enable the done to act on his behalf. Except in cases where power 
of   attorney   is   coupled   with   interest,   it   is   revocable.   The   done   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 done.
An   attorney  holder  may  however  execute   a   deed  of   conveyance   in   exercise   of   the 
power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
14. A will is the testament of the testator. It is a posthumous disposition of the estate of 
the testator directing distribution of his estate upon his death. It is not a transfer inter 
vivo. The two essential characteristics of a will are that it is intended to come into effect 
only after the death of the testator and is revocable at any time during the life time of 
the testator. It is said that so long as the testator is alive, a will is not be worth the 
paper on which it is written, as the testator can at any time revoke it. If the testator, who 
is   not   married,   marries   after   making   the   will,   by   operation   of   law,   the   will   stands 
revoked. (see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a 
will does not make it any more effective.
       
   ....
16.  We   therefore   reiterate   that   immovable   property   can   be   legally   and   lawfully 
transferred/conveyed only by a registered deed of conveyance. Transactions of the 
nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not 
amount   to   transfer,   nor   can   they   be   recognized   or   valid   mode   of   transfer   of 
immoveable property. The courts will not treat such transactions as completed or 
concluded transfers or as conveyances as they neither convey title nor create any 
interest in an immovable property. They cannot be recognized as deeds of title, except 
to the limited extent of Section 53A of the Transfer of Property Act.  Such transactions 
cannot be relied upon or made the basis for mutations in Municipal or Revenue 
Records.  What is stated above will apply not only to deeds of conveyance in regard to 
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freehold   property   but   also   to   transfer   of   leasehold   property.   A   lease   can   be   validly 
transferred only under a registered Assignment of Lease. It is time that an end is put to 
the pernicious practice of SA/GPA/WILL transactions known as GPA sales.”
6.
It   is   relevant   to   consider   the   Circular   of   Government   of   Tamilnadu  Circular   No. 
40791/C1/2004 dated   3­11­2004 clarifying certain issues about issuance of certified 
copy of Power of Attorney:
It   has   been   brought   to   the   notice   that   certified   copy   of   Power   of   Attorney   involving 
immovable property is not issued by the registering officer even on request from buyers 
or subsequent buyers of that immovable property.  The buyers of the immovable property 
are also finding it difficult in getting title changed in revenue records, because the revenue 
authorities insist on production of link document, i.e., the power of attorney.  It has also 
been   brought   to   the   notice   that   the   certified   copy   of   power   of   attorney   involving 
immovable property is not being made available to the prospective buyers.
This issue was examined in detail.  The Power of Attorney is registered in Book IV. Sub­
section (3) of Section 57 of the Registration Act restricts the issue of certified copies only 
to the executants or claimants in that Power of Attorney or to their agents/representatives. 
When the attorney executes a sale deed in favour of a buyer, all the rights relating to that 
immovable   property   are   conveyed   through   the   sale   deed,   which   also   includes 
authorization to get any record from any office for effecting change in title.     Therefore, 
any buyer will definitely qualify to be an agent for the purpose of this section i.e., Section 
57(3) of the Registration Act.   It is also felt essential that the prospective buyer should 
ensure that the Power of Attorney, is a genuine one and in force.  With an authorization, 
either from the Principal or Attorney, he is entitled to get a copy of the Power of Attorney. 
Accordingly, the following clarifications are issued:
1. Before execution of any sale deed by a “power of attorney” holder, a certified copy can be issued 
to the prospective buyer, provided such prospective buyer obtains authorization from the power of 
attorney holder or the principal to that effect.     The registering officers are requested to advise 
such prospective buyers on these lines.
2. After registration of a conveyance deed, any buyer or subsequent buyer will be entitled to get a 
certified copy of that power of attorney as per the right transferred to him through the conveyance 
deed.  The registering officers should ensure that the certified copy is issued to the subsequent 
buyers   only   after   proper   identification.     In   case   of   death   of   the   buyer   or   subsequent   buyers, 
his/her legal heirs will be entitled to get the certified copy of the power of attorney.
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In this context it is relevant to refer to certain happenings around in this society: 
There was a news report in the Hindu on December 12, 2012, stating that:  The police said 
misusing RTI, accused got the property details and created fraudulent documents, forged the 
seal and signature of revenue officials to create a general power of attorney (GPA), dating 
back to 1998, in the name of 70­year­old woman identified as Unnamalai. He also created a 
declaration and confirmation deed, dating back to 1999, to make it look like he had purchased 
the property from her for Rs. 30 lakh. Using the forged documents, he even got the property 
transferred at the Shantinagar Sub­Registrar’s Office in the name of himself and his partner, 
Girish Kumar. Both then started looking for a buyer.
When a prospective client got the documents checked, the fraud was suspected which was 
confirmed on investigation. The Police said that the scamster is a habitual offender involved in 
several forgery cases, including two of creating fake ration cards was eyeing the 45 ft by 54 ft 
property worth Rs. 3 crore in BTM Layout belonging to an NRI who lives in Washington.
In an another case, the officials of Fraud and Misappropriation wing of the Central Crime 
Branch arrested accused land dealer who, using the Right to Information (RTI) Act, sourced 
copies of property documents belonging to NRI, and forged them to sell it. The scam was 
busted when the prospective buyer verified the documents, found them to be bogus and tipped 
off the police. (http://www.thehindu.com/todays­paper/tp­national/tp­karnataka/he­misused­rti­
to­create­fake­property­deeds/article4190184.ece)
Verification   of   GPA   and   other   documents   used   in   transactions   over   immovable   property 
prevents many property related crimes and thus it is in the interest of prevention of crime of 
fraud  and  also  provide  peace  of  mind  to  the  property  purchasers,   there  is   a  huge  public 
interest involved in disclosing the GPA. 
7.
Even though the Registration Act 1908 limits disclosure of some documents to the 
executants only, Section 22 of the RTI Act 2005 overrides that law and makes it mandatory for 
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the respondent public authorities to disclose the copies of GPA in the larger public interest. 
There   is   no   public   interest   in   withholding   it;   rather   huge   public   interest   is   involved   in   its 
disclosure. 
Hon’ble High Court of Delhi has held in  Union of India v Central Information Commission 
[WP (C) 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 and 
3607/2007] had observed that: 
“49. It was urged by Mr.A.S. Chandhiok, learned Additional Solicitor General of India that 
Section   8(1)   of   the   RTI   Act   is   not   the   complete   code   or   the   grounds   under   which 
information can be refused and public information officers/appellate authorities can deny 
information for other justifiable reasons and grounds not mentioned. It is not possible to 
accept the said contention. Section 22 of the RTI Act gives supremacy to the said Act and 
stipulates that the provisions of the RTI Act will override notwithstanding anything to the 
contrary contained in the Official Secrets Act or any other enactment for the time being in 
force.   This  non­obstante   clause   has  to  be   given   full  effect   to,   in   compliance   with   the 
legislative intent. Wherever there is a conflict between the provisions of the RTI Act and 
another   enactment   already   in   force   on   the   date   when   the   RTI   Act   was   enacted,   the 
provisions of the RTI Act will prevail. It is a different matter in case RTI Act itself protects 
a third enactment, in which case there is no conflict. Once an applicant seeks information 
as defined in Section 2(f) of the RTI Act, the same cannot be denied to the information 
seeker except on any of the grounds mentioned in Sections 8 or 9 of the RTI Act. The 
Public Information Officer or  the appellate authorities cannot add  and  introduced  new 
reasons or grounds for rejecting furnishing of information. ...”
8.
The   Commission   thus   concludes   that   GPA   is   a   public   document   because   the 
grantee has to use it to convince any prospective purchaser and it is also in the interest of that 
prospective purchaser to verify the veracity of the documents including GPA before finalizing 
the deal. Because the purpose of GPA is to authorize another person to deal with the others 
i.e., to lease out, sale or mortgage etc, it is an open document and after being registered it is 
put in public domain, and when transferred to Delhi Archives, it continued to be in public 
domain, disclosure of which was permitted by the Registration Act 1908 also in a limited way. 
Registered GPA is an authenticated documentation of giving power of attorney to deal with 
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immovable property, which can be accessed by persons interested in purchasing that property 
to rule out encumbrances if any. It is the duty of Registrar office to give certified copy of such 
encumbrance   or   issue   ‘no   encrumbrance   certificate’.   The   RTI   Act   made   it   obligatory   to 
disclose any document which is held by public authority unless exemptions as mentioned in 
Section 8 are attracted. Assuming that Section 57 Registration Act 1908 authorizes them to 
deny the access to GPA, which the officers from Sub­Registrar office are regularly raising as 
defence, the Commission would like to reiterate that as per section 22 of Right to Information 
Act 2005, the 156 year old law has to yield to 2005 law which Parliament wanted to override 
the other laws. The Commission recommends the Respondent Public Authority to inform all 
the PIOs and officers registering the transactions on landed property to abide by the RTI Act 
and not to quote obsolete British relic Registration Act, 1908. As the age­old maxim says 
ignorance of law is no excuse, the respondent authority cannot plead ignorance of this law any 
more as nine years passed after RTI Act came into existence. Any effort to quote British law to 
deny the copy of GPA or any other document which has to be given under RTI Act will be 
considered   as   clever   ploy   to   deny   the   information   and   the   Commission   warns   the   public 
authority that this also will amount to violation of RTI Act attracting the penalties under Section 
20 RTI Act. The office of PIO should desist from using the archaic law and First Appellate 
Authority cannot reject first appeals on this ground. 
9.        The Commission in view of the above, and directs the respondent/PIO to supply the 
required information to the appellant within one month from the date of receipt of this order. 
The appeal is disposed of accordingly. 
     (M. Sridhar Acharyulu)
Information Commissioner

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