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
2
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
3
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
4
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
5
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
6
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
7
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.
8
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
9
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
10
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
Print Page
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
2
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
3
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
4
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
5
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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