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2025 (4) TMI 1105 - HC - Indian LawsTerritorial Jurisdiction - why the affidavit could not be filed after getting the same sworn from the Notary public under the Notaries Act 1952 at the place where the deponent was residing? - HELD THAT - A brief note has been prepared by Sri Tushar Mittall to state that although there is no bar of the notaries swearing the affidavits in terms of the specific provisions contained under the Notaries Act 1952 however in practice the Registry accepts only the affidavit which are sworn before the Oath Commissioner appointed under Chapter IV of the Allahabad High Court Rules and it is incumbent that a photograph be taken at the Photo Centre prior to ascertaining the veracity of the deponent signing the affidavit. Prima facie the nonacceptance of the affidavit deposed before the Notary under the Notaries Act is not permissible under the Allahabad High Court Rules also. Considering the fact that daily this Court is faced with the inconvenience caused to the litigants who come either at Allahabad or at Lucknow for visiting the photo centre to swear the affidavit and only then the said affidavit can be said to be properly sworn in terms of the provisions of the Rules is contrary to the provisions of the Notaries Act but also prima facie beyond the powers conferred by Chapter IV Rule 3 of the Allahabad High Court Rules. List this case on 29.04.2025.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court in this matter are:
2. ISSUE-WISE DETAILED ANALYSIS Acceptance of affidavits sworn before Notary Publics versus Oath Commissioners: The legal framework involves the Notaries Act, 1952, which governs the appointment and powers of Notaries Public, including their authority to administer oaths and attest affidavits. The Allahabad High Court Rules, particularly Chapter IV, regulate the procedural aspects of affidavits sworn before Oath Commissioners appointed by the Court. The Court noted that there is no explicit bar under the Notaries Act, 1952, preventing affidavits sworn before a Notary Public from being accepted. However, the Registry's practice has been to accept only affidavits sworn before Oath Commissioners of the Court, who also ensure that a photograph of the deponent is taken at the Court's Photo Centre prior to swearing. The petitioner's counsel submitted a written note highlighting that the Registry's refusal to accept affidavits sworn before Notaries is not permissible under the Allahabad High Court Rules. The Court referred to a precedent judgment where this issue was previously noticed, indicating that the Registry's practice may be inconsistent with the statutory provisions. The Court observed that the insistence on affidavits sworn only before Oath Commissioners and the requirement of photo identification at the Court premises is prima facie beyond the powers conferred by the relevant Rules. This suggests that the Registry's practice may be ultra vires and legally questionable. Requirement of physical appearance at the Court's Photo Centre: The Court acknowledged the practical difficulties faced by litigants who must travel to Allahabad or Lucknow to visit the photo centre for affidavit swearing. This procedural requirement, while intended to verify the identity of the deponent, appears to conflict with the broader powers of Notaries Public under the Notaries Act and the procedural flexibility that should be afforded to litigants. The Court raised a query regarding why affidavits could not be sworn before Notaries Public at the deponent's place of residence, which would alleviate the inconvenience. The petitioner's counsel argued that the current practice is inconsistent with the law and causes unnecessary hardship. Legality of fees charged for affidavit swearing and photo identification: The Court scrutinized an office memorandum indicating that the Bar Association has been delegated the power to identify deponents and charge fees amounting to Rs. 125/-, with an additional Rs. 400/- paid directly to the lawyer concerned from the photo centre's account. The Court found that the collection of these amounts is prima facie neither sanctioned by any law nor consistent with Article 265 of the Constitution of India, which prohibits taxation or imposition of charges without legislative authority. This raises serious constitutional questions about the validity of such fees. The Court directed the Registrar General to place on record the office memorandums justifying these charges, highlighting the need for transparency and legal scrutiny of the fee imposition. Scope of powers under Chapter IV Rule 3 of the Allahabad High Court Rules: The Court noted that the current practice of affidavit swearing and photo identification appears to exceed the powers granted under Chapter IV Rule 3. The Rule does not explicitly authorize the imposition of fees or the exclusive acceptance of affidavits sworn before Oath Commissioners, suggesting that the Registry's practice may be ultra vires. Relief and procedural directions: Given the importance of these issues and the inconvenience caused to litigants, the Court stayed the execution of the award dated 15.04.2022 until the next date of listing. The petitioner's counsel was appointed Amicus Curiae to assist the Court in examining these issues and to facilitate the preparation and presentation of relevant documents and arguments. The Court also directed the opposing counsel representing the High Court to assist with necessary office memorandums and justifications for the imposition of fees. Both parties were to provide assistance to ensure a comprehensive examination of the legality and propriety of the current practices. 3. SIGNIFICANT HOLDINGS The Court made the following crucial determinations and established core principles:
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