The judgment of the Court was as follows:—
1. The petitioner No. 1 is a registered partnership firm having its office at “Sagar Estate”, 2, Clive Ghat Street, Calcutta-700001, and the petitioner No. 2 is one of the partners thereof.
2. The case of the writ petitioners, as made out in the writ petition, is that one Prakashwati Devi Kajaria and the respondents Nos. 4 to 13, as the joint owners of premises No. 105-F, North Station Road, Agarpara. District-24 Parganas (North), within Panihati Municipality, entered into two Memorandums of understanding dated 9th April, 1991 and 27th May, 1991, respectively, with R.D Builders, for construction of a building complex on the said premises, on the terms and conditions mentioned therein. R.D Builders agreed to nominate the petitioner No. 1 firm to develop the said premises in its place, and, towards that end, the joint owners thereof entered into a fresh Agreement with the petitioner No. 1 firm on 27th December, 1991, with the said R.D Builders as Confirming Party. The said Agreement was duly registered with the Additional District Sub-Registrar, Barasat. According to the petitioners, it would be clear from the Agreement itself that the same was binding on the heirs, legal representative and successors-in-interest of the owners, and it empowered the petitioners to prepare plans for the construction of multi-storeyed buildings and arrange for the same to be sanctioned and/or approved by the appropriate authority, in accordance with law.
3. After the execution of the said Agreement, all the owners, including Prakashwati Devi Kajaria, executed and registered separate Powers of Attorney in favour of the petitioner No. 2 empowering him to take all steps for obtaining sanction of the building plans and for construction of the new building complex in the said premises.
4. On the strength of the said Agreement and the Powers of Attorney executed by the owners, the petitioners prepared and submitted a Building Plan to the Panihati Municipality for sanction of the construction of a multi-storeyed building complex in the said premises. On being satisfied that the Building Plan was in keeping with the Building Rules, the Municipality demanded sanction fee, building development charge and other requisite charges, amounting to Rs. 2,28,283/-, which was duly deposited by the petitioners on 24th September, 1992, under receipt granted by the Municipality in favour of the petitioner No. 2 in his capacity as Constituted Attorney of the joint owners.
5. It is the specific case of the petitioners that while steps were being taken to obtain formal grant of sanction of the Building Plan, the petitioners came to know from the office of the Panihati Municipality that Prakashwati Devi Kajaria had died on 4th April, 1992, leaving behind her surviving the respondents Nos. 6, 14 and 16 as her heirs and legal representatives. The petitioners also came to learn from the Municipal authorities that sanction to the Building Plan submitted by them had been withheld as one of the heirs of Prakashwati Devi Kajaria had made an objection to the Municipality in that regard.
6. In this writ application, the petitioners have challenged that withholding of sanction of the said Building Plan by the Panihati Municipality.
7. Appearing in support of the writ petition, Mr. Anindya Mitra submitted that since the petitioners had no knowledge of the death of Prakashwati Devi Kajaria prior to the submission of the Building Plan with the Panihati Municipality, such action was protected under Section 3 of the Powers of Attorney Act, 1882.
8. Mr. Mitra then submitted that when it was the common intention of the joint owners that the property should be developed by the petitioners, the death of one of the joint owners would not invalidate the powers given by the other joint owners to the petitioner No. 2.
9. In this regard, Mr. Mitra referred to and relied upon a Bench decision of this Court in the case of (1) Badrinarain Agarwalla v. Brijnarayan Roy, reported in AIR 1917 Calcutta at page 437, wherein it was held that where the principals are joint and several and the power given to the agent is both joint and several, the death of one of the principals does not terminate his authority as regards the surviving principals.
10. Mr. Mitra also referred to another Bench decision of this Court in the case of (2) Mohendra Nath Mookherjec v. Kali Prashad Jolutri reported in ILR (30) Calcutta at page 265, wherein it was held that if the authority of an agent to admit execution of a document is revoked before registration, but such revocation is not known either to the grantee of the document or the registering authority, the document is not invalidated, although, it is registered by the agent after the revocation of his authority.
11. Mr. Mitra then submitted that the Building Plan had been submitted to the Municipality on 8th June, 1992, and in keeping with the provisions of Section 319 of the Bengal Municipal Act, 1932, on the failure of the Municipality to either grant or refuse sanction to the said Building Plan, it must be deemed that such permission had been granted and the petitioners were entitled to proceed with the construction. In fact, Mr. Mitra even contended that the plan had been sanctioned by the Municipality on 25th September, 1992, under sanction number B.S 476 dated 25th September, 1992, but the same had been withheld from the petitioners on account of the objection filed by the respondent No. 14 of 22nd October, 1992.
12. Mr. Mitra urged that a writ in the nature of Mandamus should issue commanding the Panihati Municipality to immediately sanction the Building Plan submitted by the petitioners for construction of a mulu-storeyed building complex at premises No. 105-F, North Station Road, Agar para, District 24-Parganas (North).
13. Opposing the writ application on behalf of the respondent No. 14, Mr. Ranjan Sinha, learned advocate, firstly submitted that the provisions of Section 3 of the Powers of Attorney Act 1882, had no application to the facts of this case, as the petitioners had not acted in good faith. Mr. Sinha pointed out that admittedly if was agreed by the parties that after the plan was sanctioned and the petitioners got possession of the premises in question, they would pay a sum of Rs. 5,00,000/-, but the said sum had not been paid. Mr. Sinha submitted that since the said amount had not been paid, the petitioners could not demand, as a matter of right that the plan be sanctioned, till such time as the said amount was paid, having regard to the principle that the debtor must follow the creditor.
14. Mr. Sinha then submitted that Section 3 of the Powers of Attorney Act, 1882, is not an enabling power but an indemnifying power for actions done in good faith if the power had stood revoked on the death of the principal. Mr. Sinha submitted that the petitioners could not therefore, continue to act on the basis of the Power of Attorney executed in favour of the petitioner No. 2 by Prakashwati Devi Kajaria after her death on 3rd April, 1992, and not 4th April, 1992, as contended by the petitioners.
15. Mr. Sinha submitted that notwithstanding the intention of the joint owners, as contained in the Agreement executed on 27th December, 1991, and the Power of Attorney executed by Prakashwati Devi Kajaria in favour of the petitioner No. 2, the power given to the petitioner No. 2 by Prakashwati Devi Kajaria to act on her behalf, came to an end after her death.
16. In support of his aforesaid contention. Mr. Sinha relied upon a decision of the Nagpur Judicial Commissioners Court in the case of (3) Mt. Radhabai v. Mongia reported in AIR 1934 Nagpur at Page 274, wherein on an interpretation of Section 3 of the Powers of Attorney Act, 1882, it was held that Section 3 does no more than indemnify the holder of a Power of Attorney for actions done by him in good faith if the determination of his power by the death of the person granting it was unknown to him at that time.
17. Mr. Sinha next contended that the submission of the Building Plan by the petitioner No. 2 on 8th June, 1992, was bad and invalid, as Prakashwati Devi Kajaria, the mother of the respondent No. 14 had died in April 1992, whereupon the Power of Attorney given by her to the petitioner No. 2 came to an end.
18. Mr. Sinha then urged that since the petitioner had not complied with the provisions of Section 317 of the Bengal Municipal Act, 1972, as the form prescribed in Schedule VI had not been signed by the owners, the provisions of Section 319 of the said Act would have no application.
19. Mr. Sinha urged that the decisions referred to on behalf of the petitioners were of no avail to the petitioners, inasmuch as, in the instant case the joint owners executed separate Powers of Attorney in favour of the petitioner No. 2. Mr. Sinha submitted that this was not so in the case of Badrinarain Agarwalla (supra) where the situation was completely different and the question involved was whether on the death of one of four brothers who had executed a joint Power of Attorney, the entire power stood revoked.
20. Mr. Sinha lastly submitted that from the Affidavit-in-Opposition affirmed on behalf of the Municipality it will be seen that the petitioner No. 2 bad applied for sanction of a Building Plan on 5th December, 1991, although, the Power of Attorney in favour of the petitioner No. 2 was executed by Prakashwati Devi Kajaria much later.
21. Mr. Sinha submitted that the writ petition was liable to be dismissed with costs.
22. Appearing for the Panihati Municipality, the learned Senior Standing Counsel, with Mr. Dilip De, submitted that since all close relations were involved in the transactions, it must be presumed that the petitioners had knowledge of the death of Prakashwati Devi Kajaria. The learned Standing Counsel submitted that the Building Plan submitted by the petitioner No. 2 was in the process of being sanctioned, though the same had not actually been sanctioned.
23. The learned Standing Counsel further submitted that despite repeated requests to the petitioner No. 2 to submit an affidavit in connection with Prakashwati Devi Kajaria's Building Plan and confirmation relating to her death, and despite the letter of 23rd October, 1992, addressed to the petitioner No. 2 by the Chairman, Panihati Municipality, there was no response from the petitioner No. 2. On the other hand, the petitioner No. 2 chase to move the instant writ application.
24. It was lastly submitted by the learned Standing Counsel that after the death of Prakashwati Devi Kajaria, her interest in the property admittedly devolved upon her heirs, including the respondent No. 14, and since the Building Plan had not yet been sanctioned, the same could not now be sanctioned as the Plan was in respect of the entire land, wherein the respondent No. 14 had also acquired a share, but had not authorised the petitioners to act on his behalf.
25. From the submissions made on behalf of the respective parties, it is obvious that the fate of this writ application will depend mainly, on two questions, namely, as to whether after the death of Prakashwati Devi Kajaria, the action taken by the petitioner No. 2 on the strength of the Power of Attorney executed in his favour by her, could be said to be valid, having regard to the provisions of Section 3 of the Powers of Attorney Act, 1882, and whether the agreement which had been entered into between the petitioners and Prakashwati Devi Kajaria would be binding on her heirs after her death.
26. Section 3 of the Powers of Attorney Act, 1882, reads as follows:—
“3. PAYMENT BY ATTORNEY UNDER POWER WITHOUT NOTICE OF DEATH ETC. GOOD.
Any person making or doing any payment or act in good faith in pursuance of a Power of Attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become lunatic, or unsound mind, or bankrupt or insolvent, or had revoked the power, if the fact of death, lunacy, unsoundness of mind, bankruptcy, insolvency or revocation was not, at the time of the payment or act, known to the person making or doing the same.
But this section shad not effect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him.
This section applies only to payments and acts made or done after this Act come into force.”
27. It is apparent from the wordings of Section 3 of the aforesaid Act, that the previsions thereof seek to indemnify any action taken by the agent on the strength of the Power of Attorney without knowledge of the death of the executant. The said provisions do not, however, enable a person to continue to act on the strength of such power, even after the executant has died and the agent has knowledge of the same, since the powers granted under the Power of Attorney cease to be operative on the death of the executant. The Section only seeks to protect any action taken on the strength of such Power of Attorney without the agent having knowledge of the death of the principal. As pointed out by Mr. Sinha, the provisions of Section 3 of the aforesaid Act do not enable the doing of any act after the death of the principal, but merely indemnifies any action taken in the circumstances mentioned therein.
28. The submission of the building plans by the petitioners may be said to be valid in view of the submissions made that the petitioners had no knowledge of the death of Prakashwati Devi Kajaria prior to the submission of the said plan. Such action on the part of the petitioner No. 2, as the agent of Prakashwati Devi Kajaria, may be valid, but the question which remains to be answered is whether the plan, as submitted, can now be processed and sanctioned once the death of Prakashwati Devi Kajaria has come to be known by the concerned parties.
29. This, in fact, brings us to the next question regarding the binding nature of the provisions of the Agreement entered into between the petitioners and Prakashwati Devi Kajaria.
30. It is no doubt true that on the death of Prakashwati Devi Kajaria, her heirs, including the respondent No. 14, succeeded to her interest in the property in question. The Agreement, however, entered into on 27th December, 1991, clearly stipulates that the owners executing the Agreement would include their heirs and legal representatives, including Prakashwati Devi Kajaria.
31. In that view of the matter, the respondent No. 14, in my view, remains bound by the terms and conditions of the Agreement, though the Power of Attorney granted in favour of the petitioner No. 2 by Prakashwati Devi Kajaria, may have ceased to be operative. But that would not enable the petitioners to act on behalf of the respondent No. 14 without any fresh power being given by him in favour of the petitioners. While the respondent No. 14, may be bound by the terms of the Agreement dated 27th December, 1991, without a fresh Power of Attorney executed by him, the petitioners cannot proceed in the matter of sanction of the Building Plan, in respect of the entire premises, although, the submission of the plan may be treated as valid in view of the provisions of Section 3 of the Powers of Attorney Act, 1882.
32. Having regard to the above, I am of the view that no direction can be given to the respondents concerned to sanction the Building Plan as submitted by the petitioners, unless the same is agreed to by the respondent No. 14.
33. The decisions referred to on behalf of the petitioners do not, in my view, come to the assistance of the petitioners, inasmuch as, the Powers of Attorney in the instant case were granted individually and separately by the owners of the property in question and the facts are not at pari materia with the facts of this case. In the case of Badrinarain Agarwalla (supra) the facts were such that one of the executants of the joint Power of Attorney died leaving without any heirs. Accordingly, his share vested in the other two executants, who were, therefore, capable of acting on the basis of the Power of Attorney which had been jointly executed by the three brothers and which did not cease to be valid on the death of one of them. As observed in the said judgment, the death of one of the brothers did not in any way alter the constitution of the property but only enlarged the extent of the interest of the other members of the co-parcenery in their joint estate.
34. It is in that context that the observations referred to by Mr. Mitra were made in the said decision.
35. The other case cited by Mr. Mitra, namely, Mahendra Nath Mookherji (supra), in fact, emphasises the submissions made by Mr. Sinha, that Section (3) of the Powers of Attorney Act, 1882, seeks to indemnify any action taken after the death of the principal and does not enable the agent to continue to do something thereafter.
36. The decision of the Nagpur Judicial Commissioners Court, in the case of Mt. Radhabai (supra) cited by Mr. Sinha, appears to be more germane to the facts of this case. In the said case it was decided by a Division Bench of the said Court that Section (3) of the aforesaid Act does no more than indemnify the holder of a Power of Attorney for actions done by him in good faith, if the determination of his power by the death of the person granting it was unknown to him at that time.
37. Having regard to the above, the writ application must fail and is, accordingly, dismissed.
38. There will, however, be no order as to costs. All parties are to act on a xerox signed copy of this judgment.
39. S.K.G
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