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Smt. Sudebi Sundari Mondal Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberNo. Nil of 1982
Judge
Reported inAIR1983Cal1,1983(1)CHN169,(1983)1CompLJ108(Cal)
ActsConstitution of India - Article 226; ;Notaries Act, 1952 - Section 8; ;Oaths Act, 1873 - Sections 4 and 8; ;Negotiable Instruments Act, 1881 - Section 138; ;Code of Civil Procedure (CPC) , 1908 - Sections 139 and 141; ;Calcutta High Court App. Side Rules - Rules 5, 14, 15 and 35
AppellantSmt. Sudebi Sundari Mondal
RespondentState of West Bengal and ors.
Appellant AdvocateAshis Chandra Bagchi, Adv.
Respondent AdvocateTapas Kumar Mukharji, Adv.
Cases ReferredAjit Sanyal v. Basiruddin Mondal
Excerpt:
- .....i am of the view that r. 15 as mentioned hereinbefore would have no application. in fact, the rules under article 226 also make such provisions as above.5. mr. mukherjee, appearing for the respondent state of west bengal, contended that since section 141 of c. p. c. as provided in the code relates to miscellaneous proceedings with regard to suits and includes proceedings under order ix, but does not include any proceeding under article 226 of the constitution, so, not only under that section, but the said section read with section 139 would make it abundantly clear, that affidavits affirmed before a notary public, would not be admissible in a proceeding under article 226 of the constitution.6. under section 138 of the negotiable instruments act, 1881, there is no doubt, that the.....
Judgment:
ORDER

M.N. Roy, J.

1. This application and the other one in the case of Bidhu Bhushan Mondal v. State of West Bengal and others, having been, moved together and with notice to the learned Additional Advocate General, Mr. Mukherjee has appeared for the respondent State of West Bengal. He has filed his powers.

2. The applications as sought to be moved were affirmed before Shri Biswa Nath Banerjee, Notary Public, Murshidabad and as such, a point arose as to whether applications under Article 226 of the Constitution of India can be 'affirmed before a Notary Public.

3. The Rules of our Court relating to application under Article 226 of the Constitution, lay down that every petition shall be verified by the solemn affirmation by the petitioner or person or persons having cognizance of the facts stated and shall state clearly by reference to the paragraphs of the petition whether the statements are based on knowledge, information and belief, or on records, where a statement is based on information, the source of information should be disclosed and where the statements are based on records, sufficient particulars should be given to identify the records. Such provisions would be available in Rule 14 of the Rules as mentioned above. Rule 35 of the said Rules lays down that unless otherwise ordered, all affidavits shall be filed before the appropriate officer of the Court. No affidavit shall be used unless filed at least 24 hours before the sitting of the Court on the date fixed for the hearing and no affidavit shall ordinarily be read at the hearing unless a copy thereof has been served upon the respondent or his Advocate at least 24 hours prior to such hearing. In the Rules, there is no mentioning of affidavits, which could be affirmed before a Notary Public.

4. Mr. Bagchi, appearing in support of the applications, claimed that in terms of the provisions of the Notaries Act, 1952 and more particularly under Section 8 thereof, read along with Sections 4 and 8 of the Oaths Act, 1873 and those of the provisionof the Negotiable Instruments Act, the affidavits in the instant case, as were affirmed before the Notary Public, could be used in. respect of proceedings under Article 226 of the Constitution. It was further claimed by him, that such view is also supported by the provisions of Section 139 of the C. P. C. and more particularly because of Sub-section (aa) of the same, which was inserted by the amendment Act of 1976 and makes it clear now, that in the case of any affidavit under the Code any Notary, appointed under the Notaries Act, 1952 would be entitled to administer oath on affidavit. Mr. Bagchi also, referred to Rule 15 of Part II of Chap. IV of the Appellate Side Rules, which also lay down that no affidavit shall ordinarily he laid at the hearing of the appeal, application or other proceedings, unless a copy thereof has been served upon the other party or his Advocate, 24 hours before such hearing : provided that the rule shall not apply to urgent motions or applications or to motions or applications made ex parte. In view of the Rules framed or formulated by this Court, for matters under Article 226 of the Constitution, I am of the view that R. 15 as mentioned hereinbefore would have no application. In fact, the Rules under Article 226 also make such provisions as above.

5. Mr. Mukherjee, appearing for the respondent State of West Bengal, contended that since Section 141 of C. P. C. as provided in the Code relates to miscellaneous proceedings with regard to suits and includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution, so, not only under that section, but the said section read with Section 139 would make it abundantly clear, that affidavits affirmed before a Notary Public, would not be admissible in a proceeding under Article 226 of the Constitution.

6. Under Section 138 of the Negotiable Instruments Act, 1881, there is no doubt, that the Government of India had the power to appoint Notary Public, but such appointment would only be for the limited purpose of performing functions under that Act and as such, by the present Notaries Act of 1952, the Central and the State Governments were given powers to appoint Notaries in appropriate cases, not only for the limited purposes of the Negotiable Instruments Act, but generally for all recognised notarial purposes, and to regulate the provisions of such Notaries. The functions of Notaries are mentioned in Section 8 of the Notaries Act, 1952 and they include amongst others, swearing of affidavits in some cases, themanner of swearing affidavits is of course prescribed in Order XIX and not in Section 139 of C. P. C. and a Notary, as mentioned before, can administer oath and take affidavit under Section 8(e) of the said Act and it has been observed in the case of Metal Press Works Ltd. v. Ram Pratap Kayan, (1968) 72 Cal WN 594, which was not a proceeding under Article 226, that an appeal supported by such affidavit would not be out of the way.

7. Mr. Bhgchi, in support of his submissions as above, has referred to the determination in the case of Kamal Narain Sarma v. Dwarka Prasad Mishra, : [1966]1SCR478 , which was a case under the Conduct of Election Rules, 1961 and where the effect of an affidavit sworn before Commissioner of Oaths or before District Clerk of Court, later describing himself as Officer for administering oath on affidavit, was construed and it was observed, that such affidavit had complied with the provisions of Rule 94-A of the Conduct of Elections Rules, 1961. In a Punjab Full Bench decision, in the case of Teja Singh v. Union Territory of Chandigarh, , which was also referred to by Mr. Bagchi, the fact of such an affidavit or affirmation thereof, in a proceeding under Article 226 of the Constitution, came up for consideration and it was observed that in the matters, which have not been specifically dealt with by the writ jurisdiction (Punjab and Har yana) Rules (1976), the provisions of C. P. C, so far as they can be made applicable, would apply to the proceeding under Article 226 of the Constitution. It has further been observed that the explanation added to Section 141 of the Code by the 1976 C. P. C. (Amendment) Act, does not in any way nullify the effect of Rule 32 of the Writ Rules. The views as expressed by the Full Bench determination as above, do really get support from the Supreme Court judgment as indicated hereinbefore. But, those views as expressed, would not certainly have any application in case of the Rules as in our case, the particulars whereof have been mentioned hereinbefore and more particularly when, our Rules are silent about affirmation before a Notary Public. It should be noted further that the question whether an application under Article 226 of the Constitution is a 'proceeding in a Court of Civil Jurisdiction' within the meaning of Section 141, has been the subject matter of a judicial controversy. It has been observed by Andhra Pradesh, High Court that Section 141 would apply in such proceeding, but on the other hand theAllahabad, Calcutta, Madras and Punjab High Courts have held that Section 141 would not be applicable to such proceedings. Thus, it can be deduced that Section 141 is not applicable to proceeding under Article 226 of the Constitution. The Punjab Full Bench determination will not apply in this case as Writ R. 32 as involved there contemplates application of the provisions of C. P. C. which is not so in our Rules.

8. If that is so, then considering such provisions along with the provisions in Section 139 of C. P. C. and the other provisions as indicated above, I am of the view that an affidavit affirmed before a Notary Public, would not be a proper affidavit, to he used here in a proceeding under Article 226 of the Constitution of India.

9. The above being the position and my views, I think without discharging the Rules on that ground, the petitioners should be given liberty to have their applications reaffirmed either before the Commissioner of! Affidavits of this Court or before such authority, as duly authorised.

10. It should be noted that similar point came up for consideration before Amiya Kumar Mukharji J., in Civil Rule No. 4882 (W) of 1977 (Modern High School for Girls v. Commr. of Income-tax) and there, his Lordship, after considering the relevant facts, verbally directed the Commissioner of Affidavits to get the application re-affirmed by the deponent before him and on such directions, the deponent of the application before his Lordship, subsequently re-affirmed his application on 26th August, 1977. It must also be kept on record that in the case of Ajit Sanyal v. Basiruddin Mondal, (1982) 1 Cal LJ 483 : (1982 Lab IC 796), a Bench determination of this Court, has observed that procedure provided for suits in the Code is not applicable to writ proceedings. But, there would be no bar to Court in adopting such procedure, if need be, in its discretion and that too for acting in accordance with the principles of justice, equity and good conscience. I am of the opinion that the views as expressed by me would not prejudice the petitioners.


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