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TMI Blog2017 (2) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... unfounded, having regard to the provisions of Clause 53 of the Writ Rules. We are also conscious of the fact that we have decided this question ex parte, without hearing the respondent on the subject controversy. But this was inevitable, considering the stage of the proceeding at which this issue was brought to our notice. In the event the respondents want to question our finding on this point, we would hear them after the petition is listed before us. The Department is directed to accept the application and register the same, if the petition otherwise in order - petition allowed. - A.P.O. No. 308 of 2016 - - - Dated:- 10-2-2017 - Aniruddha Bose and Arindam Sinha, JJ. Ms. Payel Saha, Advocate, for the Appellant. Shri J.P. Khaitan, Sr. Advocate, Amicus Curiae, for the Respondent. ORDER [Order per : Aniruddha Bose, J.]. - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were necessary for regulating the form and other details of procedure of writ petitions. But instead of unnecessarily wasting time, it was thought proper to apply all the relevant provisions of the Civil P.C. by enacting a rule of the kind of R. 32. It would be pertinent to observe here that it was not contended by Mr. Anand Swarup that in case a rule in the same terms as O. 23 R. 1 and O. 22 of the Code had been incorporated in the Writ Rules, then such a rule could be ignored on the ground that it curtailed the constitutional right of a party to approach this Court under Art. 226 of the Constitution. In other words, it was not controverted by the learned counsel that for the purpose of dealing with a petition under Art. 226, rules could be framed which could have had the same effect as the provisions of the Civil P.C. have. That being so, I fail to understand as to how the provision of R. 32 of the Writ Rules can be ignored on the ground that in case the provisions of Civil P.C. are made applicable, then it would result in curtailment of the constitutional right of a person to approach this Court under Article 226 of the Constitution. 6. The Writ Rules which prevailed at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and explained that affidavit. 5. Affidavits taken before authorised Commissioner. - Affidavits for use in any of the jurisdictions of the Court may be taken in Calcutta or within 5 miles thereof before a Commissioner generally or specially authorised by the Chief Justice for the purpose. Every such Commissioner shall express in the jurat the place where he has taken any affidavit, in the event of the same being taken elsewhere than in the Court House. 9. The aforesaid provisions of the Original Side Rules deal with affidavits which are made in Kolkata or within the distance specified therein, and stipulate the manner in which those affidavits are to be affirmed. The said clauses do not mandate that affidavits to be used in Original jurisdiction of this Court could only be affirmed before the Oath Commissioner of this Court. Thus, we do not find any provision in the Writ Rules or the Original Side Rules which exclude permissibility of affirmation of an affidavit before a notary public or any other designated authority. 10. Section 139 of the Code of Civil Procedure provides :- 139. Oath on affidavit by whom to be administered. - In the case of any affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsular Officer (Oath and Fees) Act, 1948 which this Court s office missed and which provides inter alia as follows : (1) Every diplomatic or consular officer may, in any foreign country or place where he is exercising his functions administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State; and every oath, affidavit and, notarial act administered, sworn or done by or before any such person shall be effectual as if duly administered, sworn or done by or before, any lawful authority in a State. (2) Any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, of the official character of that person. Now that being the express statute in India, there is no difficulty here. The Notarial Act of Elizabeth Levy has not only been certified under the seal of the Country Clerk and Clerk of Supreme Court, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oath for affirming an affidavit have become applicable in a writ proceeding as well, since the Writ Rules do not contain any contrary or exclusionary provision. We also do not find there is any conflict between the provisions of Section 141 read with Section 139 of the Code of Civil Procedure and the Writ Rules. Section 141 of the Code of Civil Procedure excludes writ proceedings from the ambit of the expression proceedings as employed in that section. But so far as Writ Rules of this Court is concerned, Rule 53 contemplates applicability of the provisions of the Code in the manner specified in the said provision. The doubt expressed by the Stamp Reporter in our opinion is unfounded, having regard to the provisions of Clause 53 of the Writ Rules. We are also conscious of the fact that we have decided this question ex parte, without hearing the respondent on the subject controversy. But this was inevitable, considering the stage of the proceeding at which this issue was brought to our notice. In the event the respondents want to question our finding on this point, we would hear them after the petition is listed before us. 16. We accordingly direct the department to accept the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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