Writ – Power of attorney – A writ petition under Article 226 of the Constitution can be filed by a power of attorney holder subject to certain safeguards [Constitution Of India – Art. 226]

The issue before the Full Bench of the Allahabad High Court was “Whether a writ petition under Article 226 of the Constitution can be filed by a power of attorney holder.” The High Court held that when a writ petition under Article 226 of the Constitution is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition which is instituted under Article, 226 of the Constitution is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the Court. Hence, the issue was decided in the affirmative.

The High Court further emphasised the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following:

(1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application;

(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and

(3) The donee must be confined to those acts which he is 15 authorised by the power of attorney to discharge.