APO No. 308 of 2016. Case: Naveen Goel Vs Commissioner of Customs (Port) and Ors.. High Court of Calcutta (India)

Case NumberAPO No. 308 of 2016
CounselFor Appellant: Payel Saha, Advocate and For Respondents: J.P. Khaitan, Sr. Advocate (Amicus Curiae)
JudgesAniruddha Bose and Arindam Sinha, JJ.
IssueCode of Civil Procedure, 1908 (CPC) - Order XXIII Rules 1, 22; Sections 139, 141; Constitution of India - Articles 225, 226; Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 - Section 3
Judgement DateFebruary 10, 2017
CourtHigh Court of Calcutta (India)

Judgment:

Aniruddha Bose, J.

  1. This matter was listed today primarily for considering an objection note of the Stamp Reporter, High Court, Original Side in relation to registering the stay petition of the appellant taken out in connection with the appeal. This appeal is against an order of a learned Single Judge of this Court passed in exercise of jurisdiction under Article 226 of the Constitution of India. The stay petition is supported by an affidavit affirmed before the Attache (Passport), High Commission of India, Singapore on 14th December 2016. It is for this reason the department had declined to accept the petition for registering the same for subsequent listing. Under the provisions of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (Act 41 of 1948), authorities specified therein have been conferred with notarial power as also the power to administer oath. This matter was mentioned before us by Ms. Saha, learned counsel for the appellant bringing to our notice the fact that the department was not registering the stay petition and we sought a report from the department in that regard. In the report furnished before us, the Stamp Reporter, referring to a decision of an Hon'ble Single Judge of this Court in the case of Sudebi Sundari Mondal vs. State of West Bengal & Ors. (AIR 1983 Cal 1), has recorded:-

    On this point the undersigned has a doubt, with utmost respect to the amendment taken place, as to whether by an administrative order of amendment of rule, a judicial order passed by an Hon'ble Court can be overrode or not.

    Be that as it may, again on 7th December, 1999 in G.A. No. 41 of 1999 (Award Case No. 57 of 1994) The Great Eastern Shipping Co. Ltd. Vs. The Union of India represented by the Food Corporation of India, This Hon'ble Court by its order also excluded the writ jurisdiction of This Hon'ble Court while deciding the applicability of Notarial affidavits in the proceedings of Civil nature.

  2. In the judgment of Sudebi Sundari (supra), it was held that in a writ petition, affirmation of an affidavit before a Notary Public was impermissible.

  3. We had requested Mr. J.P. Khaitan, learned Senior Advocate to assist us in taking a decision on this point and today he has made his submissions and cited several authorities, to which we shall refer to later in this judgment. In Sudebi Sundari (supra), it was, inter-alia, observed:-

    "7......................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 here in before. 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...

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