# Smt. Kiran Gupta v. The Commissioner, Kanpur Division, Kanpur & Ors

- **Citation:** (2021) 11 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-13
- **Case number:** Writ B No. 8628 of 2003
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-gupta-v-the-commissioner-kanpur-division-kanpur-ors-46509
- **Pages:** 10

## Headnote

A. Revenue - Indian Stamp Act, 1899 - Section 47
A/33-challenge to-evasion of stamp duty-general
power of attorney in question cannot be
considered as irrevocable and cannot be treated
as a conveyance for the purpose of imposing the
stamp duty under Article 48(ee) of schedule 1-B
of the stamp act-stamp authorities imposed the
deficiency of stamp to the tune of Rs. 75000/-
reconsider the deed in question and impose
stamp fee in accordance with the provisions as
under Article 48(c) of Schedule 1-B of the stamp
act-stamp
authorities
misread
and
misinterpreted the recital in the deed and illegally
dragged it into the clutches of the provisions as
enshrined under Article 48(ee) schedule 1-B of
the Stamp Act-from the recital of the power of
attorney in question it is not inferred that it is
irrevocable in the hands of donee-by virtue of the
clause -8 and 9 of the power of attorney in
question donee has been authorized to act on
behalf of donor and deed has been made
revocable and right to revoke is reserved with the
donor.(Para 1 to 30)

The petition is allowed. (E-6)

List of Cases cited:

## Text

11 All. Smt. Kiran Gupta Vs. The Commissioner, Kanpur Division, Kanpur & Ors.
307
Group-D employees who were subjected to
screening alongwith the petitioner, only two
persons including the petitioner were classified
as
deadwood
and
consequently
retired
compulsorily from service.

27. It is also not in dispute that the
integrity of the petitioner for the period under
consideration as well as for rest of his service
tenure has remained beyond doubt, as such, the
argument in nutshell is to the effect that the
solitary minor punishment awarded to the
petitioner was not decisive of treating the
petitioner as deadwood by any degree of
prudence.

28. The Court finds strength in Petitioner's
case. The impugned order, being perverse, is
liable to be set aside. Thus, in my considered
opinion, the impugned order passed by the
competent authority being illegal and arbitrary is
hereby set aside, the petitioner shall be
reinstated in service with all consequential
benefits inclusive of past salary. The writ
petition is allowed with no order as to cost.
----------
(2021)11ILR A307
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ B No. 8628 of 2003

Smt. Kiran Gupta ...Petitioner
Versus
The Commissioner, Kanpur Division, Kanpur &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar, Sri Rajesh Kr. Srivastava, Sri
Satyendra Nath Srivastava, Sri Chandra Shekhar
Srivastava, Sri Sudhanshu Srivastava

Counsel for the Respondents:
C.S.C.

A. Revenue - Indian Stamp Act, 1899 - Section 47
A/33-challenge to-evasion of stamp duty-general
power of attorney in question cannot be
considered as irrevocable and cannot be treated
as a conveyance for the purpose of imposing the
stamp duty under Article 48(ee) of schedule 1-B
of the stamp act-stamp authorities imposed the
deficiency of stamp to the tune of Rs. 75000/-
reconsider the deed in question and impose
stamp fee in accordance with the provisions as
under Article 48(c) of Schedule 1-B of the stamp
act-stamp
authorities
misread
and
misinterpreted the recital in the deed and illegally
dragged it into the clutches of the provisions as
enshrined under Article 48(ee) schedule 1-B of
the Stamp Act-from the recital of the power of
attorney in question it is not inferred that it is
irrevocable in the hands of donee-by virtue of the
clause -8 and 9 of the power of attorney in
question donee has been authorized to act on
behalf of donor and deed has been made
revocable and right to revoke is reserved with the
donor.(Para 1 to 30)

The petition is allowed. (E-6)

List of Cases cited:

1. Suraj Lamp & Indus. Pvt. Ltd. Vs. St. of Har.
(2011) Law Suit (SC) 1007

2. St. of Raj. Vs. Basant Nehata (2005) 12 SCC 77

3. Kasthuri Radhakrishnan & ors. Vs. M. Chinniyan &
anr. (2016) 3 SCC 296

4. Shiv Kumar Saxena & ors. Vs. Manishchand Sinha
& ors. (2004) 2 MPJR 269/(MANU/MP/0321/2004)

5. Joginder Kumar Goyal Vs. Govt. of NCT of Delhi &
ors. Writ-C 3012 of 2016

6. Board of Revenue, Madras Vs. Annamalai & Co.
(Pvt.) Ltd.(1968) AIR Mad 50

7. Asha M. Jain Vs. Canara Bank (2001) 94 DLT 841

(Delivered by Hon'ble Dinesh Pathak, J.)
308 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard learned counsel for the petitioner,
learned Standing Counsel who represents
respondent nos.1, 2 & 3 on the admission of writ
petition and perused the record.

2. Despite direction, till date no counter
diffident has been filed. On 04.08.2021 this
matter was adjourn on a request made on behalf
of State to enable the brief holder to further
prepare the case. In view of the peculiar facts
and circumstances of case, where in only nature
of the document in question is required to be
interpreted for the purpose of stamp duty, this
court proceed to finally decide this matter at the
admission stage with the consent of the counsel
for the parties.

3. Instant writ petition has been filed by
petitioner
challenging
the
order
dated
17.12.2002,
passed
by
Chief
Controlling
Revenue Authority/ Commissioner, Kanpur
Division, Kanpur (Respondent No.1) and order
dated 19.04.2002, passed by the Additional
District Magistrate (Finance/Revenue), Kanpur
Nagar (Respondent No.2).

4. Present writ petition is arising out of
proceeding under section 47A/33 of Indian
Stamp Act, 1899 (as amended by the State of
U.P.) (in brevity 'Stamp Act'), in pursuance of
the report dated 21.12.1994 submitted by Sub
Registrar, Kanpur Nagar (respondent no.3) to
initiate
a
proceeding
of
stamp
evasion,
considering the deficiency of stamp duty in
execution
of
power
of
attorney
dated
15.12.1994, which was executed on the stamp of
Rs.56 by Sri Samar Mukherjee, Sri Santosh
Kumar Mukharjee and Sri R.P.Yadav in favour
of the present petitioner namely Smt. Kiran
Gupta. Sub-Registrar has treated the aforesaid
power of attorney as irrevocable authority give
to the attorney (petitioner) to cell immovable
property,
accordingly,
he
has
proposed
imposition of stamp as enshrined under Article
48(ee) of Schedule 1-B of Stamp Act.

5. Facts giving rise to the present petition
is that Sri Samar Mukherjee, Sri Santosh Kumar
Mukharjee, sons of S. K. Mukherjee, Residence
of House No.113/249, Swaroop Nagar, Kanpur
and Sri R.P.Yadav son of M.L. Yadav,
Residence of House No.307 faithfulganj, Kanpur
Nagar, had executed a power of attorney dated
15.12.1994(Annexure No.1), in favour of the
present petitioner namely Smt. Kiran Gupta wife
of Ram Kishan Gupta, Residence of House
No.33/107, Gaya Prasad Lane, Kanpur Nagar.
Through aforesaid deed executant/donor has
appointed the petitioner as an agent/donee, to
take care of his property, namely Flat No.5,
situated at third floor of House No.112/351,
Swaroop Nagar, Kanpur Nagar and to take all
the relevant steps for its maintenance, alteration,
giving the property on rent and alienate the same
on behalf of the donor. She has also been
authorized to pursue the matter, in case of any
legal complication or dispute, before the
authority and court concerned. Under Clause-8
of the aforesaid deed donors have reserved their
right to revoke the power of attorney in question.

6. Chief Controlling Revenue Authority,
vide its order dated 18.06.2001(Annexure No.3),
had
quashed
the
previous
order
dated
01.10.1997, passed by Assistant Collector for
want of jurisdiction and remitted the matter
before the authority concerned to decide it
afresh. In pursuance of the order dated
18.06.2001, matter of stamp evation has been reexamined by the Additional District Magistrate
(Finance/Revenue), Kanpur Nagar(Respondent
No.2), imposing deficiency of the stamp duty to
the tune of Rs.72,444/- and penalty of Rs.2,556/-
, total Rs.75,000/-, vide its order dated
19.04.2002(Annexure No.4). Feeling aggrieved,
petitioner has preferred revision (Annexuure
No.5) under section 56 of Stamp Act, against the
order
dated
19.04.2002,
before
Chief
Controlling Revenue Authority/Commissioner,
Kanpur, Division Kanpur who has dismissed the
revision, vide impugned order dated 17.12.2002
11 All. Smt. Kiran Gupta Vs. The Commissioner, Kanpur Division, Kanpur & Ors.
309
(Annexure-6), confirming the order dated
19.04.2002 passed by Additional District
Magistrate (Finance/Revenue), Kanpur Nagar,
which are under challenge in the present writ
petition.

7. Counsel for petitioner submits that
stamp authorities have illegally determined the
market value of the subject matter (house) of the
power of attorney dated 15.12.1994 treating it as
conveyance and imposed stamp duty under
article 48(ee) of schedule 1-B of Stamp Act,
whereas it is a revocable power of attorney. He
has drawn attention of the Court towards the
clause-8 of the power of attorney dated
15.12.1994 wherein right to revoke the power of
attorney has been reserved by the executant. It is
further submitted that through the deed in
question neither the consideration has been
received nor right, title and possession of the
property in question has been transferred to the
attorney/agent, who has been authorized to take
care of the property, which is a flat measuring
area 1106 square feet, and also complete all the
legal formalities, if required, and to transfer the
same in the nature of sale, lease etc. on behalf of
the executant. It is further submitted that the
stamp
authorities
have
misread
and
misinterpreted the recital as made in the power
of attorney and illegally treated it as a
conveyance for the purpose of imposing the
stamp duty. In support of his case, learned
counsel for petitioner has cited Full Bench
decision dated 11.10.2011 of Hon'ble Supreme
Court, in the case of 'Suraj Lamp & Industries
Private Limited Vs. State of Hariyana',
reported in 2011 Law Suit (SC) 1007.

8. Per contra, learned Standing Counsel
representing the State has contended that the
stamp authorities have rightly considered the
deficiency of stamp in execution of the deed in
question, which comes in the clutches of the
Stamp Act. By way of power of attorney donee
has been authorized to alienate the property, in
favour of the third person, treating him as owner
of the property, therefore, deed in question will
be considered as conveyance, as defined under
section-2(10) of the Act, and the petitioner is
under obligation to furnish stamp duty in
accordance with law as provided under Article
23(a), of schedule 1-B of Stamp Act. He has also
emphasized the authority of the donee, who has
been authorized to execute the lease deed,
received the rent, deliver the possession of the
property etc. It is further contended that recital
made in clause-8 of the deed in question do not
make it revocable. In fact, entire right of the
owner/donor has been transfer in favour of the
donee, who has been authorized to enjoy all the
rights of the property being owner. There is no
illegality or error in the order passed by the
stamp authorities. Petitioner cannot escape from
his legal duty to pay the required stamp in
execution of power of attorney.

9. Considered the submissions advanced
by learned counsel for the parties and perused
the record on board.

10. Questions for consideration in the
present matter is as to whether deed in question
(power of attorney dated 15.12.1994) is
irrevocable and can be treated as an conveyance
for the purposes of imposing the stamp duty
under Article 48(ee) of schedule 1-B of the
Stamp Act. Power of attorney dated 15.12.1994
(Annexure No.1) succient the authority of the
attorney who has been authorized not only to
take care of the property in question but also to
execute the lease deed and sale deed in favour of
third person on behalf of principal. Subject
matter of power of attorney is flat no.5
measuring area 1106 sq. feet consists of two
bedroom, one drawing/dining room, two latrine
bathroom, one kitchen & store, and verandah /
balcony. Aforesaid flat is situated at the third
floor of house no.112/351. Stamp authorities
have assessed the market value of the aforesaid
flat to be Rs.5 lakhs and, accordingly, imposed
310 INDIAN LAW REPORTS ALLAHABAD SERIES
the deficiency of stamp to the tune of
Rs.72,444/- along with penalty amounting
Rs.2,556/-, total amount of Rs.75,000/-. They
have treated the aforesaid deed as an irrevocable
deed by which donee has been authorized to
transfer the immovable property, accordingly
stamp duty has been imposed under the
provisions of the Stamp Act.

11. As per submission made by counsel for
the petitioner, by virtue of clause-8 and 9 of the
power of Attorney dated 15/12/1994 donee has
been authorized to act on behalf of donar and
deed has been made revocable and right to
revoke is reserved with the donor. Submissions
as made by learned counsel for the petitioner has
been contradicted by the learned Standing
Counsel and contended that recital made in
clause-8 will not frustrate the applicability of
Stamp Act and the whole reading of the deed in
question suggest that it is irrevocable authority
given to the attorney to enjoy and transfer the
subject matter of the deed in question. For the
purpose to draw the intention of donors in the
execution of power of attorney, recital made in
clause-8 and 9 of the deed should be examined
in the light of the provisions as enshrined under
the Stamp Act. For the ready reference,
averments made in clause-8 and 9 of the power
of attorney dated 15/12/1994 is reproduced
hereinunder;- (8)

^^(8) ;g fd eq[rkjvke ds fdlh dk;Z ls
vlarq"V gksus ij ge eqfdjku ;g eq[rkj ukek vke
fujLr djus ds vf/kdkj lqjf{kr j[krs gS^^

(9) ;g fd eq[rkj vke }kjk fd;s x;s dqy
dk;Z tks fd mDr Q~ySV dh ckor fd;s x;s gksaxs os
leLr dk;Z ge eqfdjku }kjk fd;s x;s ekus o le>s
tkosaxs vkSj tks fd ge eqfdjku dks Lohdkj o ekU;
gksaxsA

12. Clause 8 and 9 of the power of attorney
succincts that in case of dissatisfaction with any
work of attorney, executents (donors) have
posses the right to revoke the general power of
attorney and all the acts done by attorney with
respect to the flat will be understood and done
on behalf of donors and will be accepted and
admitted by them.

Relevant provisions of Article 48 of
schedule 1-B of the Stamp Act, with U.P.
amendment, is reproduced here under:-

48. Power-of-attorney [as
defined by section 2(21)],
not being a Proxy (No.
52)--
----------------
(a) ----------------
----------------
(b) ----------------
----------------
(c) ----------------
----------------
(d) ----------------
----------------
(e)
when
given
for
consideration
and
authorizing the attorney
to sell any immovable
property.
The same duty as a
Conveyance [No.23
clause (a)] for the
amount
of
the
consideration.
(ee)
when
irrevocable
authority is given to the
attorney
to
sell
immovable property.
The same duty as a
Conveyance [No.23
clause (a) on the
market value of the
property
forming
subject
of
such
authority].
(f) ----------------
----------------

13. Before discussing the merits of the
case, the nature and scope of the power of
attorney is required to be discussed first. Section
1-A and section 2 of The Power Of Attorney Act
1982 evince the scope and nature of the power
of attorney which enunciates that power of
attorney includes an instruments authorizing a
particular person to act for and in the name of a
person who has executed it. A power of attorney
11 All. Smt. Kiran Gupta Vs. The Commissioner, Kanpur Division, Kanpur & Ors.
311
holder may, however, execute a deed of
convenience in exercise of power granted under
the power of attorney and convey title on behalf
of granter and every such instrument and thing
so executed and done, shall be as effectual in
law as if it had been executed or done by the
donee with the signature and seal of the donor.
Thus it is clear, as held by Hon'ble Apex Court
in the case of Suraj Lamp (Supra), that power of
attorney is not an instrument of transfer qua any
right, title or interest in an immovable property.
It is a deed creating an agency whereby donor
authorizes donee to do the act specified therein,
on behalf of the donor, which when executed
will be binding on the donor as if done by him.
Generally, power of attorney are 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 donee. As such, power of
attorney creates agency to do or not to do
something on the authorization given by the
principal on his behalf, which will be binding
against him. It does not confer any right, title
and possession in favour of the donee. In the
case of State of Rajasthan vs, Basant Nehata
2005 12 SCC 77, Apex Court has expounded
the nature and scope of power of attorney.
Relevant para 13 and 52 of the aforesaid
judgment are quoted here in under:-

''13. 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 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.

52. Execution of a power of attorney
in terms of the provisions of the Contract Act
as also the power-of-Attorney Act is valid. A
power
of
attorney,
we
have
noticed
hereinbefore, is executed by the donor so as to
enable the donee to act on his behalf. Except
in case where power of attorney is coupled
with interest, it is revocable. The donee 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 donee."

14. In case of Suraj Lamp (Supra)
Apex Court has held that the power of
attorney is not conveyance for valid transfer.
Relevant paragraph 16 of the said judgment is
quoted hereinunder:-

"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 immovable 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 TP 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 freehold
property but also to transfer of leasehold
property. A lease can be validly transferred only
312 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. In the case of Kasthuri Radhakrishnan
& Otheres Vs. M. Chinniyan & Anothers,
(2016) 3 SCC 296, the Apex Court has reiterated
the verdict of Suraj Lamp (Supre) and stated in
para 36 as follows:-

""36. The Law relating to power of
attorney is governed by the provisions of the
Powers of Attorney Act, 1982. It is well settled
therein that an agent acting under a power of
attorney always acts, as a general rule, in the
name of his principal. Any document executed
or thing done by an agent on the strength of
power of attorney is as effective as if executed
or done in the name of principal i.e. by the
principal himself. An agent, therefore, always
acts on behalf of the principal and exercises
only those powers, which are given to him in
the power of attorney by the principal. Any act
or thing done by the agent on the strength of
power of attorney, is therefore, never construed
or /and treated to have been done by the agent
in his personal capacity so as to create any right
in his favour but is always construed as having
done by the principal himself. An agent,
therefore, never gets any personal benefit of
any nature..."

16. To ascertain the authenticity of the
power of attorney its registration is must under
the relevant provisions of law, otherwise any
act or omission done by agent on behalf of his
principal will not be binding on him.
Registration provides safety and security to
transactions
relating
to
the
immovable
property, even if the document is lost or
destroyed. In absence of registration of
document it creates illegal consequences which
has to be faced by the person concerned for the
purposes to ascertain its legal sanctity.

17. Stamp Act provides procedure for
payment of stamp fee in the nature of tax with
the government. Execution of power of attorney
are already regulated by law and subject to
specific stamp duty. Section 2(21) of the Stamp
Act defines the power of attorney which is
quoted below:-

"(21) "Power-of-attorney". "Power-ofattorney"
includes
any
instrument
(not
chargeable with a fee under the law relating to
court-fees for the time being in force)
empowering a specified person to act for and in
the name of the person executing it;

18. For the purpose of determining the
applicable entry of the schedule to the Stamp
Act to the document for the purpose of assessing
stamp duty payable, reference may be had to a
Division Bench Judgment of the M.P. High
Court in 'Shiv Kumar Saxena & Ors., v.
Manishchand Sinha & Ors.', 2004(2) MPJR
269/(MANU/MP/0321/2004). Relevant portion
of the said judgment reads as follows:

"..............The
following
cardinal
principles laid down by Courts should always be
kept in view, before considering any question
relating to stamp duty:--

(i) Stamp duty is leviable on the
instrument and not the transaction.

(ii) The substance of the transaction
embodied in the instrument determines the
stamp duty and not the form or title of the
instrument.

(iii) In order to determine the nature of
document and whether it is sufficiently stamped,
the Court shall only look to the contents of the
document as it stands and not any collateral
circumstances which may be placed by way of
evidence. In other words, for purposes of stamp
duty, the intention of the parties is to be gathered
only from the contents of the instrument and not
any outside material. (But where the stamp duty
depends on the market value, outside material
11 All. Smt. Kiran Gupta Vs. The Commissioner, Kanpur Division, Kanpur & Ors.
313
can be considered in the manner provided in the
relevant stamp law).

(iv) To find out the true character of an
instrument for purpose of stamp duty, the
document should be read as a whole and the
dominant purpose of the instrument should be
identified.

(v) The instrument must be stamped
according to its tenor though it cannot be given
effect for some independent cause.

(vi) The Revenue cannot contend that
the object of the transaction was to achieve a
purpose not disclosed in the document and,
therefore, the document should be stamped as
per such deemed, but undisclosed purpose.
Similarly, the party liable to pay stamp duty
cannot contend that the purpose disclosed in the
instrument is not the actual purpose and
therefore, he is not liable to pay stamp duty on
the apparent tenor of the instrument.

(vii) Once a document containing
effective words of disposition is executed, it
attracts stamp duty. The taxable event cannot be
postponed by contending that it was intended to
come into effect on a future date, on the
happening of a particular contingency."

19. Power of Attorney, at the time of
registration, is charged with the stamp duty.
Article 48, schedule 1-B of Stamp Act
enunciates several categories of power of
attorney which are required to be stamped as per
the nature of the document by which agency has
been authorized to do the work. Article 48 of
schedule 1-B of Stamp Act deals with the power
of attorney basically of two kind namely specific
power of attorney and general power of attorney.
Needless to say that person who has been
authorized by his principal to execute a
particular deed or to sign a particular contract or
to purchase a particular parcel or to any
particular act, is considered as an special agent.
On the other hand a person who is authorized by
his principal to execute all deeds, sign all
contracts, or to purchase all goods and do all
things as required in particular business, trade or
employment is treated as a general agent.

20. Article 48(e) of Scheduled 1-B of
Stamp Act deals with the matter where power of
attorney has been executed for consideration,
authorizing the attorney to sale any immovable
property. Article 48(ee) of Scheduled 1-B of
Stamp Act enunciates levy of stamp on such
power of attorney which are irrevocable in
nature, intending to stop such transaction
through power of attorney which are made for
the purposes of evading stamp duty. U.P.
Legislation has inserted 48(ee) of Scheduled 1-B
of Stamp Act by virtue of U.P. Act No.11 of
1992. Nature of documents as to whether it is a
revocable or irrevocable is depends on the
construction of the documents and after going
through the whole contents one can infer the
nature of documents.

21. In the case of Joginder Kumar Goyal
Vs. Government of NCT of Delhi & others,
decided on 17.05.2016 in W.P.(C) 3012/2016,
Division Bench of Delhi High Court expressed
its view in para 12, which is as follows:-

"12. Clearly, the character/nature of
the document for the purpose of stamp duty
would vary on the facts of each case depending
on the substance of the transactions as stated in
the instrument itself. There can be no sweeping
conclusion as sought to be argued by the
petitioner, that every power of attorney
executed in favour of a person other than a
relative by a grantor to deal with immovable
property is per se a conveyance deed and not a
power of attorney. Merely because some
clauses are introduced in some power of
attorney holding it to be irrevocable or
authorizing the attorney holder to effect sale of
the immovable property on behalf of the
grantor would ipso facto not change the
character of the document transforming it into a
conveyance deed."
314 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Full Bench judgment of the Madras High
Court in the case of Board of Revenue, Madras,
Vs. Annamalai And Co. (Pvt.) Ltd., AIR 1968
Mad 50, succints the definition of irrevocable
agency. Para 5 of the judgment is reproduced
hereinunder:-

"..................... It is represented by the
learned Government pleader appearing for the
Government that the principles set out in Article
48(e) are derived from the notion of irrevocable
agency in the law of contracts, where the authority
granted by the principal to the power agent is
coupled with an interest held by the agent. Wellknown commentaries have explained this principle
thus:--

1. "If a borrower, in consideration of a
loan, authorises the lender to receive the rents of
Blackacres by way of security, the authority remains
irrevocable until repayment of the loan in full has
been effected... This doctrine applies only where the
authority is created in order to protect the interest of
the agent; it does not extend to a case where the
authority has been given for some other reason and
the interest of the agent arises later". (Cheshire on
the Law of Contracts, 6th Edn. page 421.)

2. Where the authority of an agent is
given by deed, or for valuable consideration, for the
purpose of effectuating any security, or of protecting
or securing any interest of the agent, it is irrevocable
during the subsistence of such security or interest"
(Bowstead on Agency, 12th Edn. p. 301).

3. Adopting the classical statement of the
rule given by Wilde C. J. in Smart v. Sanders,
(1848) 5 CB 895 at p. 917 (Sic), on the Law of
Agency, 2nd Edn. page 302 states:

"In such cases the authority is given for
valuable consideration as a security, or as part of a
security, in respect of a liability of the principal to
the agent. The agent has, as it were, bought his
authority in order to ensure the payment of a debt
due from the principal".

(6) The principles thus set out above have
been embodied in Section 202 of the Indian
Contract Act, and in particular illustration (a)
therefor, which is in the following terms--

"A gives authority to B to sell A's land,
and to pay himself, out of the proceeds, the debts
due to him from A. A cannot revoke this authority,
nor can it be terminated by his insanity or death". "

23. Perusal of the power of attorney in
question as whole indicates that it is a general
power of attorney executed in favour of the
petitioner to take care and manage the subject
matter of the deed including its rental and alienable
right. In clause (1) and (2) of the deed in question
attorney (petitioner) has been authorized to
manage the subject matter of deed as if it is done
by donor and given restricted power of alteration
with caution not to cause harm to the walls, roof
and floor of flat. Clause (8) and (9) of the deed
further clarifies the intention of the donor. So far as
the applicability of the provisions as enunciated
under Article 48(ee) of schedule 1-B of the Stamp
Act is concerned, in my opinion it is not attracted
in the present matter. The recital made in clause-1,
2, 8 and 9 of power of attorney dated 15/12/1994,
succincts the restricted authority granted to the
attorney to renovate or reinvigorate the flat in
question with caution and the principal has
reserved all rights to revoke the power of attorney
in case of dissatisfaction with the work of attorney
appointed. Meaning thereby deed in question dated
15/12/1994 cannot be treated to be irrevocable.
Language of general power of the attorney in
question is immaculately clear that intention of the
executant is to confer the approved power of
agency under the condition of revocation of deed,
in case, donor is not satisfied with the work of
donee. In case, it is treated to be an irrevocable
authority, petitioner will be liable to pay the stamp
duty as per the provisions of Article 23(a) of
Schedule 1-B of Stamp Act, which is applicable
for the conveyance.

24. It would not be out of contest to quote
the definition of conveyance and instrument as
enshrined under section 2(10) and 2(14),
11 All. Smt. Kiran Gupta Vs. The Commissioner, Kanpur Division, Kanpur & Ors.
315
respectively, of the Indian Stamp Act as
follows:-

"2(10) "Conveyance". "Conveyance"
includes a conveyance on sale and every
instrument
by
which
property,
whether
movable or immovable, is transferred inter
vivos and which is not otherwise specifically
provided for by Schedule I, Schedule 1-A or
Schedule 1-B], as the case may be

[Explanation.-
An
instrument
whereby a co-owner of a property having
defined share therein, transfers such share or
part thereof to another co-owner of the
property, is for the purposes of this clause an
instrument by which property is transferred';"

"2(14) "Instrument".- "Instrument"
includes every document and record created or
maintained in or by an electronic storage and
retrieval device or media by which any right
or liability is, or purports to be, created,
transferred, limited, extended, extinguished or
recorded];"

25. After going through the recital in the
deed in question dated 15/12/1994, I am of the
view that it is a revocable authority given to
the petitioner to do any transaction, whether it
is sale or rent or taking care and manage the
property etc. There is nothing in the deed in
question to demonstrate that authority has
been
given
to
the
donee
for
some
consideration or, due to non irrevocable status
of the deed, the property in question vested in
the donee and he became full owner of the
said property. Apart from that authority
granted by the principal to the donee can not
be said to be coupled with an interest held by
the agent.

26. Stamp Authorities have misread and
misinterpreted the recital in the deed and
illegally dragged it into the clutches of the
provisions as enshrined under Article 48(ee)
of schedule 1-B of Stamp Act.

27. As such mere execution of general
power of attorney by a person would not ipso
facto imply that any transfer of property as
defined in the Transfer of Property Act that in
general power of attorney, even if it is provides
for power of attorney holder to convey title on
behalf of the guarantor or deemed to be
irrevocable cannot be recognized as deed title.
From the perusal of the power of attorney in
question it would not be inferred that it is
irrevocable in the hands of donee.

28. Case of Suraj Lamp (Supra) cited by
counsel for the petitioner is not applicable in the
present matter. Full Bench dictum of Hon'ble
Supreme Court is with respect to the validity of
sale agreement/ general power of attorney/will,
which are executed for the purpose of Transfer
of the Property. After considering the provisions
of Transfer of Property Act, Registration Act
and Power of Attorney Act, Hon'ble Supreme
court
has
concluded
that
aforesaid
documents/transactions neither convey any title
nor create any interest in an immovable
property. In the aforesaid cited case, Hon'ble
Supreme Court has reversed the judgment of
Delhi High Court in the case of Asha M. Jain
Vs. Canara Bank, reported in 2001(94) DLT
841, whereby concept of power of attorney sales
have been recognized as a mode of transactions.
Matter in hand relates to the limited scope, qua
imposition of Stamp, as to what stamp fee
leviable in registration of the document in
question.

29. In this conspectus, as above, in my
opinion general power of attorney in question
dated 15.12.1994 cannot be considered as
irrevocable, therefore, it cannot be considered as
a conveyance for the purposes of leaving stamp
as enshrined under Article 48(ee) of Schedule 1B of Stamp Act. It would be appropriate to
consider the deed in question and impose stamp
fee in accordance with the provisions as
enshrined under Article 48(c) of Schedule 1-B of
316 INDIAN LAW REPORTS ALLAHABAD SERIES
the Stamp Act. Accordingly, Stamp Authorities
are directed to consider levy of the Stamp Fee in
the light of the aforesaid provision. Impugned
orders under challenge passed by the respondent
nos. 1 and 2 dated 17.12.2020 and 19.04.2020,
respectively , are illegal, erroneous and against
the very intention as recited in the power of
attorney dated 15/12/1994. As such, present writ
petition is succeeded and allowed.

30. It is made clear that any amount, in
case, deposited by the petitioner in pursuance of
the impugned orders passed by the authorities
concerned shall be reimbursed to the petitioner
with the simple interest as applicable presently.
----------
(2021)11ILR A316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ C No. 3124 of 2019

Ashok Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Singh, Sushma Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Fire Arm license - Cancellation -
Order passed without opportunity of hearing -
Review
against
cancellation
order
-
Maintainability of review - Seri Infrastructure's
case followed - Every Tribunal has the power
of review if there is a procedural defect - Held,
when the petitioner was not heard definitely a
Review was maintainable. (Para 6)
Writ petition allowed. (E-1)
Cases relied on :-
1. Seri Infrastructure Finance Limited Vs Tuff Drilling
Pvt. Ltd.; 2018(11) SCC 470
(Delivered by Hon'ble Siddhartha Varma, J.)

1. Heard learned counsel for the parties.

2. Show cause notice was issued to the
petitioner as to why his license for carrying the
firearm be not cancelled. On 3.6.2015, the
petitioner had appeared before the District
Magistrate, Varanasi. However, even before a
reply was filed the firearm license was cancelled
on 27.06.2017. The petitioner filed a Review
Application, which was also dismissed on
12.07.2017.
When,
however,
the
Review
Application was also dismissed, the petitioner
challenged the orders dated 27.06.2017 and
12.07.2017 before the Appellate Forum and the
Appeal was ultimately allowed on 5.3.2015 and
the matter was remanded back to the District
Magistrate,
Varanasi.
When
the
District
Magistrate, Varanasi refused to interfere in the
matter, after the matter was remanded back, the
instant writ petition has been filed against the
order dated 13.08.2018 as also against the
cancellation order dated 27.06.2015.

3. Submission of learned counsel for the
petitioner is that after the District Magistrate had
set-aside the order dated 12.07.2015 and had
restored
the
Review
Application,
the
Review/Recall Application ought to have been
heard. He submits that it was incumbent upon
the District Magistrate to have heard the Review
Application, specially when the Appellate Court
had returned a definite finding that the earlier
order dated 27.06.2015 was passed without
hearing the petitioner. Learned counsel for the
petitioner relying upon a decision of the
Supreme Court reported in 2018(11) SCC 470;
(Seri Infrastructure Finance Limited vs. Tuff
Drilling Private Limited) has observed that when
a review was sought owing to the fact that the
quasi judicial Authority had not afforded proper