- Bookmark
- Share
- CaseIQ
Smt. Sudebi Sundari Mondal v. State Of West Bengal And Others
Factual and Procedural Background
This opinion concerns applications (including one in the case of Bidhu Bhushan Mondal v. State of West Bengal) that were moved together and noticed to the Additional Advocate General. The respondent State of West Bengal was represented by Mr. Mukherjee, who filed his powers. The petitions had been affirmed before Shri Biswa Nath Banerjee, Notary Public, Murshidabad. A point arose whether applications under Article 226 of the Constitution of India can be affirmed before a Notary Public. The Court’s Rules for Article 226 (including Rule 14 and Rule 35) require verification by solemn affirmation and prescribe filing before appropriate court officers; those Rules are silent about affirmation before a Notary Public. The matter was argued and the Court considered statutory provisions (Notaries Act 1952; Oaths Act 1873; Negotiable Instruments Act) and provisions of the Civil Procedure Code (notably Sections 139 and 141) and prior decisions before reaching its decision.
Legal Issues Presented
- Whether an affidavit or application under Article 226 of the Constitution can be affirmed before a Notary Public.
- Whether provisions of the Notaries Act, 1952 (including Section 8) read with the Oaths Act, 1873 and the Negotiable Instruments Act, and Section 139 of the C.P.C. (including sub-sec. (aa) added by the 1976 amendment) entitle a Notary to administer an affidavit for use in Article 226 proceedings.
- Whether Section 141 of the C.P.C. (and its interaction with Section 139) applies to proceedings under Article 226, thereby affecting the admissibility of affidavits affirmed before a Notary Public.
- Whether the Court’s own Rules governing Article 226, which are silent about affirmation before a Notary Public, preclude the use of Notary-affirmed affidavits.
Arguments of the Parties
Mr. Bagchi (Applicants)
- Contended that under the Notaries Act, 1952 (particularly Section 8), read with Sections 4 and 8 of the Oaths Act, 1873 and provisions of the Negotiable Instruments Act, affidavits affirmed before a Notary Public could be used in Article 226 proceedings.
- Relied on Section 139 of the C.P.C., and sub-section (aa) (inserted by the 1976 amendment), to show that a Notary appointed under the Notaries Act is entitled to administer an oath on affidavit under the Code.
- Referred to Rule 15 of Part II of Chapter IV of the Appellate Side Rules (that addresses service of affidavits 24 hours before hearing) and argued it supported his position; but the Court observed that Rule 15 would have no application to Article 226 rules as framed for this Court.
Mr. Mukherjee (Respondent State of West Bengal)
- Contended that Section 141 of the C.P.C. relates to miscellaneous proceedings with regard to suits and includes proceedings under Order IX but does not include any proceeding under Article 226; therefore Section 141, read with Section 139, makes it clear that affidavits affirmed before a Notary Public would not be admissible in Article 226 proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Metal Press Works Ltd. v. Ram Pratap Kayan, (1968) 72 Cal WN 594 | Illustration that an appeal supported by an affidavit sworn before a Notary (or similar officer) may not be improper (case was not under Article 226). | The Court noted the decision but observed it was not a proceeding under Article 226 and thus of limited relevance to the question before it. |
| Kamal Narain Sarma v. Dwarka Prasad Mishra, AIR 1966 SC 436 | Construction of an affidavit sworn before Commissioner of Oaths (or similar officer) under Rule 94-A of the Conduct of Elections Rules, 1961; shows such affidavits can comply with specific rules. | The Court observed this decision supported Mr. Bagchi’s submissions in contexts where rules permitted such affirmations, but it was a matter under the Conduct of Election Rules and not directly determinative for the Court’s Article 226 Rules. |
| Teja Singh v. Union Territory of Chandigarh, AIR 1982 Punj & Har 169 | Punjab Full Bench held that where writ rules do not specifically deal with a matter, provisions of the C.P.C., so far as applicable, may apply to Article 226 proceedings; and the explanation to S.141 (by 1976 amendment) does not nullify effect of Writ Rule 32. | The Court noted the Full Bench view but held it would not apply to the present case because the Court’s own Rules for Article 226 are not similar (they are silent about affirmation before a Notary Public) and therefore the reasoning there was not applicable here. |
| Civil Rule No. 4882(W) of 1977 (Modern High School for Girls v. Commr. of Income-tax) | Practice where the Court (Amiya Kumar Mukharji J.) directed the Commissioner of Affidavits to get the application re-affirmed by the deponent before him. | The Court recorded this as a factual precedent for the procedure of having applications re-affirmed before the Commissioner of Affidavits and referred to it in granting similar liberty to petitioners to re-affirm. |
| Ajit Sanyal & Anr. v. Basiruddin Mondal & Anr., (1982) 1 Cal LJ 483 : (1982 Lab IC 796) | Bench observation that the procedure provided for suits in the Code is not applicable to writ proceedings, but the Court may adopt such procedure in its discretion in accordance with principles of justice, equity and good conscience. | The Court relied on this proposition to support that requiring re-affirmation would not prejudice the petitioners and that the Court can, in its discretion, adopt procedural measures for writs. |
Court's Reasoning and Analysis
The Court began with the Rules applicable to Article 226 petitions: Rule 14 requires verification by solemn affirmation and particulars about the basis of statements; Rule 35 prescribes filing affidavits before the appropriate court officer and service 24 hours prior to hearing. The Rules contain no provision for affidavits affirmed before a Notary Public.
The Court considered statutory provisions: the Notaries Act, 1952 confers functions on Notaries (including administering oaths under Section 8), and historically the Government could appoint notaries for limited purposes under the Negotiable Instruments Act; the Notaries Act extended appointments and regulation of Notaries generally. However the manner of swearing affidavits is prescribed in Order XIX (and not S.139 of the C.P.C.), even though Section 8(e) of the Notaries Act allows a Notary to administer an oath.
It weighed competing submissions: Mr. Bagchi relied on the Notaries Act, Oaths Act and Section 139 C.P.C. (including sub-sec. (aa) from the 1976 amendment) to contend a Notary can administer oaths for affidavits used in Article 226 proceedings; Mr. Mukherjee contended Section 141 C.P.C. does not extend to Article 226 proceedings and therefore Section 139 read with Section 141 precludes the use of Notary-affirmed affidavits in Article 226 matters.
The Court examined precedents relied upon by the parties (including decisions where CPC provisions were applied to writ matters or where affidavits sworn before various officers were held sufficient). The Court observed a judicial controversy about whether Article 226 proceedings are "proceedings in a Court of Civil Jurisdiction" within the meaning of Section 141: Andhra Pradesh High Court said Section 141 applies, but Allahabad, Calcutta, Madras and Punjab High Courts held it does not. On balance the Court concluded Section 141 is not applicable to proceedings under Article 226 under its Rules.
Having considered the statutory powers of Notaries and the authorities cited, and noting the Court’s own Rules are silent about affirmation before a Notary Public, the Court concluded that an affidavit affirmed before a Notary Public would not be a proper affidavit to be used in a proceeding under Article 226 of the Constitution of India.
The Court nevertheless declined to dismiss or discharge the petitions on that ground and granted the petitioners leave to have their applications re-affirmed before the Commissioner of Affidavits of the Court or another duly authorized authority. The Court supported this remedial course by reference to an earlier instance where a Judge directed re-affirmation and to the principle that the Court may adopt procedural measures in its discretion so as not to prejudice parties.
Holding and Implications
Holding: An affidavit affirmed before a Notary Public is not a proper affidavit for use in proceedings under Article 226 of the Constitution of India.
Implications:
- The direct effect is that the affidavits in the instant petitions, having been affirmed before a Notary Public, are not acceptable for the Article 226 proceedings as they stand.
- The petitioners were granted liberty to have their applications re-affirmed either before the Commissioner of Affidavits of this Court or before another duly authorized officer; the Court did not discharge the Rules on that ground.
- The opinion does not purport to lay down a broad new precedent beyond the circumstances considered; it relies on the Court’s Rules, statutory provisions, and earlier decisions to reach a remedial direction tailored to the present cases.
Order accordingly.
This application and the other one in the case of Bidhu Bhushan Mondal v. State of West Bengal, 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 provisions of 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 Art. 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-sec. (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 lays down that no affidavit shall ordinarily be 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 S. 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, the manner of swearing affidavits is of course prescribed in Order XIX and not in S. 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, AIR 1966 SC 436, 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, AIR 1982 Punj & Har 169, which was also referred to by Mr. Bagchi, the fact of such an affidavit or affirmation thereof, in a proceeding under Art. 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 Haryana) 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 S. 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 the Allahabad, Calcutta, Madras and Punjab High Courts have held that S. 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 be 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 & Anr. v. Basiruddin Mondal & Anr., (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.
Order accordingly.
Alert