Legal Challenge Exposes Flaws in Affidavit Swearing Protocols, Validates Notary Public Certification and Challenges Arbitrary Registration Fees

The HC examined the legality of affidavit swearing procedures, finding the Registry's practices potentially ultra vires. The Court held that affidavits sworn before Notary Publics should be accepted, the requirement of physical photo identification at the Court centre is improper, and fees charged for affidavit swearing lack legal sanctity. The Court stayed the award and directed further examination of these procedural issues.

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1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this matter are:

• Whether affidavits sworn before a Notary Public under the Notaries Act, 1952, can be accepted by the Allahabad High Court Registry in lieu of affidavits sworn before the Oath Commissioner appointed under Chapter IV of the Allahabad High Court Rules;
• Whether the practice of requiring litigants to appear physically at the photo centre of the Court for photo identification and swearing of affidavits is legally valid and consistent with the provisions of the Notaries Act and the Allahabad High Court Rules;
• The legality and validity of the imposition and collection of fees amounting to Rs. 125/- plus Rs. 400/- payable to Bar Association members for the swearing of affidavits, and whether such charges conform to the constitutional mandate under Article 265 of the Constitution of India, which prohibits taxation without legislative sanction;
• The extent of the powers conferred by Chapter IV Rule 3 of the Allahabad High Court Rules in relation to the acceptance and swearing of affidavits;
• Whether the current procedural requirements and fee impositions cause undue inconvenience and hardship to litigants, and if so, whether such practices should be re-examined or reformed.

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:

• "Prima facie, the nonacceptance of the affidavit deposed before the Notary under the Notaries Act is not permissible under the Allahabad High Court Rules." This establishes that affidavits sworn before Notaries Public should be accepted unless expressly barred by law.
• "The insistence on the affidavit being sworn before the Oath Commissioner with photo identification at the Court's Photo Centre is contrary to the provisions of the Notaries Act and beyond the powers conferred by Chapter IV Rule 3 of the Allahabad High Court Rules." This clarifies the limits of the Court's procedural rules and the Registry's authority.
• "The collection of Rs. 125/- and Rs. 400/- fees for affidavit swearing and photo identification is prima facie neither sanctioned by any law nor consonant with Article 265 of the Constitution of India."

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