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2017 (2) TMI 1257 - HC - CustomsRegistration of stay petition - 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 - Held that - the provisions of the Civil Procedure Code pertaining to administration of 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. The Department is directed to accept the application and register the same, if the petition otherwise in order - petition allowed.
Issues Involved:
1. Objection to registering the stay petition due to affirmation of affidavit before an Attache (Passport), High Commission of India, Singapore. 2. Applicability of provisions of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. 3. Relevance of prior judgments and rules regarding affirmation of affidavits in writ petitions. Issue-wise Detailed Analysis: 1. Objection to Registering the Stay Petition: The primary issue was the objection raised by the Stamp Reporter regarding the registration of a stay petition because the supporting affidavit was affirmed before the Attache (Passport), High Commission of India, Singapore. The department declined to accept the petition for registration due to this affirmation, which was not in accordance with the usual practice within the jurisdiction of the High Court. 2. Applicability of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948: The appellant relied on the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, particularly Section 3, which allows diplomatic or consular officers to administer oaths and take affidavits abroad, making them as effectual as if done by lawful authority within a state. The court recognized the applicability of this statute, as affirmed in the case of In Re: K.K. Ray (Private) Ltd. (AIR 1967 Cal 636), which established that affidavits affirmed before diplomatic or consular officers abroad are valid and admissible. 3. Relevance of Prior Judgments and Rules: The court examined several prior judgments and rules to address the objection: - In Sudebi Sundari Mondal v. State of West Bengal & Ors. (AIR 1983 Cal. 1), it was held that affirmation of an affidavit before a Notary Public was impermissible in writ petitions. However, this judgment was based on the rules prevailing at that time, which did not specifically provide for the applicability of the Civil Procedure Code (CPC) to writ proceedings. - The court noted that the Writ Rules were subsequently altered, and new rules effective from 23rd May 1986, and further changes in 1999, allowed the applicability of the CPC to writ proceedings. Rule 53 of the Writ Rules now provides that the provisions of the CPC shall be followed in all proceedings under Article 226, as far as applicable. - The Full Bench decision of Punjab and Haryana High Court in Teja Singh v. Union Territory of Chandigarh (AIR 1982 Punjab and Haryana 169) supported the applicability of the CPC to writ proceedings, provided the writ rules did not contain contrary provisions. - The court also referred to the case of Ajit Sanyal v. Basiruddin Mondal [1982(1) CLJ 483], which held that even though the procedure regarding suits is not applicable to writ proceedings, the court could adopt such procedures if necessary. Based on these considerations, the court concluded that the objection raised by the Stamp Reporter was unfounded. The provisions of the CPC pertaining to the administration of oaths for affirming affidavits are applicable in writ proceedings, and there is no exclusionary provision in the current Writ Rules against affirmation before a notary public or a diplomatic officer. Conclusion: The court directed the department to accept and register the stay petition if it was otherwise in order. The court clarified that the question of the power or jurisdiction of the Diplomatic Officer who endorsed the affidavit was not an issue before them. The court also expressed appreciation for the assistance rendered by the Amicus Curiae. Order: The department was instructed to accept and register the stay petition, and the file was sent down to the department with the court's order. The court noted that if the respondents wished to challenge this finding, they would be heard after the petition is listed.
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