TMI Blog2005 (9) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... He appointed one Sukhdeo Singh as his attorney authorizing him to look after his lands, cultivate the same and to do all other acts, deeds and things including mortgage or sell the same, get the requisite deeds and documents registered, by a deed of Power Of Attorney dated 16.7.1999. The said deed was presented before the Sub-Registrar, Bikaner on 30.7.1999 for the purpose of registration which was refused by making an endorsement on the document that the same could not be registered in terms of the Government Notification dated 26.3.1999 published in the Rajasthan Gazette dated 1.4.1999 as amended on 22.4.1999 whereby and whereunder registration of such documents have been prohibited as being 'opposed to public policy'. The said notifications were said to have been issued by the State of Rajasthan in exercise of its power conferred upon it under Section 22-A of the Act. The Respondent herein questioned the constitutionality of Section 22- A of the Act as inserted by the legislature of Rajasthan as also the aforementioned notifications by filing a writ petition before the Rajasthan High Court. HIGH COURT: By reason of the impugned judgment the Rajasthan High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Annexure/4 April 22, 1999 S.O. 62 In exercise of the powers conferred under Section 22-A of the Indian Registration Act, 1908 [Central Act No. XVI of 1908] as applicable in the State of Rajasthan, it is expedient to amend the Notification No. F.2[3] FD-Tax-Div/99-189 dated 26.3.1999 as under; In place of the phrase six months in the above notification, the phrase Three years is substituted. [No. F.2(FD/TAX-DIV/99-213] By order of the Governor, Sd/- (Shikhar Agarwal) Dy. Secretary Govt. Annexure/6 26th March, 1999 S.O. 484:- In exercise of the powers conferred by Section 22-A of the Registration Act, 1908 (Central Act No. XVI of 1908), as applicable in the State of Rajasthan, the State Govt. hereby declares that the registration of any of the following documents is opposed to public policy:- Power of Attorney authorizing the execution of the sale deed, gift, mortgage or any other document of transfer of immovable property presentation for registration before any office other than the Sub-Registrar or Registrar respectively in whose District or Sub-District the whole or some part of the property to which such power of attorney relates is situated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperior courts would not invalidate a statute only on the ground that guidelines have not been laid down by the legislature for making subordinate legislation or that the legislature has abdicated its essential legislative function in favour of executive but in a given case may strike down only the notifications issued by the State if it be found to have exceeded its jurisdiction in that behalf. In any event as such guidelines can be found out either from the preamble or from other provisions of the Act, the same need not be stated in the offending provision itself. THE ACT: The Act was enacted to consolidate the enactments relating to the Registration of Documents. Prior to enactment of the said Act, the provisions relating to registration of documents were scattered in seven enactments. The Act was enacted in terms of Entry 18, List II and Entry 6, List III of the Seventh Schedule of the Constitution of India. It mainly deals with the necessity of getting a document registered in India so as to make them valid and even if they are executed outside India to provide for registration thereof after their first arrival in India. Section 17 of the Act enumerates the instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orney, 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. Besides the Indian Contract Act, the Power of Attorney Act, 1882 deals with the subject. Section 1A of the Power of Attorney Act defines power of attorney to include any instruments empowering a specified person to act for and in the name of the person executing it. Section 2 of the said Act reads, thus: Execution under power-of-attorney 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, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction. Hence, the said principle of presumption is not an absolute rule but it is also subject to limitations. Its application in interpretation can only be applied to resolve a conflict when two interpretations are possible and not when there is only one leading to the conclusion that the delegated legislation is unguided and excessive. If the provisions are unconstitutional a mere presumption which decides the burden of proof cannot save them. In Craies on Statute Law, seventh edition at page 95, it is stated: The first business of the courts is to make sense of the ambiguous language, and not to treat it as unmeaning, it being a cardinal rule of construction that a statute is not to be treated as void, however, oracular. This was thus laid down by Bowen L.J. in Curtis v. Stovin: The rules for the construction of statutes are very like those which apply to the construction of other documents, especially as regards on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the Courts cannot and should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. As regard delegated power to restrict and modify , it was held: delegation cannot extend to the altering in essential particulars of laws which are already in force in the area in question. The power to 'restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law- making to Parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority [See also Ajoy Kumar Banerjee and Others etc. vs. Union of India Others [(1984) 3 SCC 127], Agricultural Market Committee vs. Shalimar Chemical Works Ltd. [1997) 5 SCC 516], Krishna Mohan (supra). Our attention, however, has been drawn to a decision of this Court in Ramesh Birch and Others etc. vs. Union of India and Others [1989) Supp. (1) SCC 430] wherein Ranganathan, J. speaking for a 2-Judge Bench while construing the provisions of Section 87 of the Reorganisation Act empowering the Central Government to extend with such restrictions or modifications as it may think fit any enactment which is in force in a State at the date of notification to the Union Territory of Chandigarh observed: 23. But, these niceties apart, we think that Section 87 is quite valid even on the policy and guideline theory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Bihar [(2000) 5 SCC 488] wherein this Court has held : 22. All this exercise would have been avoided if only the legislature would have taken care not to leave an ambiguity in the definition of juvenile and would have clearly specified the point of time by reference to which the age was to be determined to find a person to be a juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the Statement of Objects and Reasons. The Preamble suggests what the Act was intended to deal with. If the language used by Parliament is ambiguous the court is permitted to look into the Preamble for construing the provisions of an Act (Burrakur Coal Co. Ltd. v. Union of India). A Preamble of a statute has been said to be a good means of finding out its meaning and, as it were, the key of understanding of it, said this Court in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti. The Preamble is a key to unlock the legislative intent. If the words employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret the enactment as to harmonise it with the object which the legislature had in its view So it is only when the lang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. It may well be that the effect of this would be that such a decision may even attempt to override the appellate or the revisional power exercised by the High Court under Section 40 of the Act as the case may be. The section enables passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer. We are not oblivious of the decisions of this Court laying down the proposition of law that the statute dealing with fiscal matters and / or laying down a provision or enforcing the doctrine of social justice adumbrated in the Directive Principles of State Policy as contained in Part IV of the Constitution of India ordinarily would not be interfered with by the superior courts in exercise of their power of judicial review. The Act is neither a fiscal statute nor deals with any matter falling under Part IV of the Constitution of India. PUBLIC POLICY: The words 'Public policy' or 'opposed to public policy', inter alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hadeodas Maiya, the doctrine of public policy is governed by precedents, its principles have been crystalised under the different heads and though it was permissible to expound and apply them to different situations it could be applied only to clear and undeniable cases of harm to the public. Although, theoretically it was permissible to evolve a new head of public policy in exceptional circumstances, such a course would be inadvisable in the interest of stability of society. A contract being opposed to public policy is a defence under section 23 of the Indian contract Act and the courts while deciding the validity of a contract has to consider: a) Pleadings in terms of Order VI, Rule of the Code of Civil Procedure. b) Statute governing the case c) Provisions of Part III and IV of the Constitution of India d) Expert evidence, if any. e) The materials brought on record of the case. f) Other relevant factors, if any. A party in a suit against whom illegality is pleaded also gets an opportunity to defend himself. Hence this essential function to decide on what is public policy can not be delegated to executive through a subordinate legislation. The legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good. In Chitty on Contracts, 28th edition at page 838, it is stated: Objects which on grounds of public policy invalidate contracts may, for convenience, be generally classified into five groups : first, objects which are illegal by common law or by legislation; secondly, objects injurious to good government either in the field of domestic or foreign affairs; thirdly, objects which interfere with the proper working of the machinery of justice; fourthly, objects injurious to marriage and morality; and fifthly, objects economically against the public interest. This classification is adopted primarily for case of exposition. Certain cases do not fit clearly into any of these five categories. The learned author observed that doctrine of public policy is somewhat open-textured and flexible which has been the cause of judicial censure of the doctrine and has been seen by the courts as being vague and unsatisfactory, a treacherous ground for legal decision, a very unst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts such a possibility. [See Nagle Vs. Feilden, (1966) 2 QB 633 and Newcastle Diocese (Church Property Trustees Vs. Ebbeck (1960) 34 ALJR 413]. A doctrine which is so vague or uncertain, in our opinion, thus, cannot and does not provide any guideline whatsoever. Furthermore, the executive while making a subordinate legislation cannot be permitted to open new heads of public policy in its whims. Towards opposed to public policy, therefore, do not lay down any guidelines to render it constitutional. Execution of power of attorney per se is not invalid. On the other hand, it is lawful. The notifications issued by the State of Rajasthan themselves show that the uncertain position to which the parties to a transaction evidenced by a deed or a document can be put to. By the notification dated 1st April, 1999, any power of attorney authorizing the attorney to transfer any immovable property for a term in excess of six months or irrevocable or where the term is not mentioned was declared to be opposed to public policy; whereas by reason of a subsequent notification dated 22nd April, 1999 in place of six months, three years was substituted. Similarly, by a notification dated 26th Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act have not been amended. Execution of a power of attorney per se, therefore, is not illegal. Registration of power of attorney except in cases falling under Section 17(1)(g) or 17(1)(h) is not compulsorily registrable. Sections 32 and 33 of the Indian Registration Act also do not bar any such registration. The Act only strikes at the documents and not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein. Thereby only the notice of the public is drawn. In M.E. Moolla Sons, Ltd. (in Liquidation) Vs. Official Assignee, Rangoon and others [AIR 1936 PC 230], while commenting on section 17 and section 49 of the Act, it was stated: It is to be observed upon a comparison of these different sections that while the Registration Act only requires certain documents to be registered on pain of the consequences entailed by S. 49, T.P. Act, by S. 54 enacts that (with a limited exception) the sale of immovable property can be made only by registered instrument. The provisions of the Registration Act by themselves would not operate to render invalid a mere oral sale. On the other hand the somewhat wide phrase any interest.to or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . vs. General Electric Co. [(1994) Supp. (1) SCC 644] and Oil and Natural Gas Corporation Ltd. vs. Saw Pipes Ltd. [(2003) 5 SCC 705]. Hence, it becomes amply clear that it is not possible to define Public policy with precision at any point of time. It is not for the executive to fill these grey areas as the said power rests with judiciary. Whenever interpretation of the concept public policy is required to be considered it is for the judiciary to do so and in doing so even the power of the judiciary is very limited. Even for the said purpose, the part dealing with public policy in Section 23 of the Indian Contract Act is required to be construed in conjunction with other parts thereof. A further question which arises is whether having regard to the doctrine of separation of powers what is essentially within the exclusive domain of the judiciary can be delegated to the executive unless policy behind the same is finally laid down. A thing which itself is so uncertain cannot be a guideline for any thing or cannot be said to be providing sufficient framework for the executive to work under it. Essential functions of the legislature cannot be delegated and it must be judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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