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2025 DIGILAW 175 (CAL)

Faizul Hoque v. State of West Bengal

2025-02-10

SUBHENDU SAMANTA

body2025
JUDGMENT : SUBHENDU SAMANTA, J. 1. Private respondent No. 6 challenge the maintainability of the writ petition on two fold grounds: Firstly, the writ petition is not maintainable due to the affidavit sworn by special power of attorney on behalf of the petitioner is defective, on the basis of which, this court cannot entertain the writ petition. Secondly, on earlier round of litigation, one applicant had challenged the appointment of the respondent No. 6 which was decided in favour of the private respondent up to Hon’ble Supreme Court. The present petitioner again tries to agitate the same issue before this court. Thus the present petitioner being the fence sitter cannot allowed to challenge appointment of the respondent No. 6 as a distributor in respect of the impugned vacancy notification. 2. Learned Senior Counsel Mr. Abhratosh Mazumder submits that it is well settled proposition of law that any person approaches this court, in its exercise of high prerogative writ jurisdiction, ought not to make material statements which infact untrue, and/or, misleading, suppression and making misleading statements would, culminate in dismissal of the said petition. 3. Mr. Majumder further submits that this writ petition was affirm by one Md. Najmi Alam on 26th October 2023 claiming himself to be constituted attorney of the petitioner. He further submits that on perusal of the said affidavit in the writ petition it would be revealed that age of said power of attorney of attorney holder is declared to be 27 years. Mr. Majumder argued that by swearing affidavit before the commissioner of this court, the said special power of attorney said, that he was well acquainted with the facts and circumstances of this case. Mr. Majumder submits that the instant vacancy notification was published on 08th December, 2006; considering the present age of the constituted attorney, he was minor at the date of issuance of such vacancy notification. The minors knowledge regarding the fact of the writ petition cannot be considered, and/or determined the same, to be true. The constituted attorney has stated before the commissioner that paragraph 1to 30 of writ petitions are true to his knowledge. The same statement cannot be true. Mr. Majumder argued that the writ petition is defective due to the ineffective affidavit. Thus the writ petition is required to be dismissed in limini. 4. In support of his contention Mr. The constituted attorney has stated before the commissioner that paragraph 1to 30 of writ petitions are true to his knowledge. The same statement cannot be true. Mr. Majumder argued that the writ petition is defective due to the ineffective affidavit. Thus the writ petition is required to be dismissed in limini. 4. In support of his contention Mr. Majumder cited a decision reported in Syed Wasif Husain Rizvi Vs. Hasan Raja Khan and Ors. 2016 SCC Online Allahabad 175: 7. The Allahabad High Court Rules, 19527 contain in Chapter XXII provisions for directions, orders or writs under Article 226 and Article 227 of the Constitution (other than a writ in the nature of habeas corpus). Under Rule 1(1) of Chapter XXII, an application for a direction, order or writ under Article 226 and Article 227 of the Constitution (other than a writ in the nature of habeas corpus) is required to be made to the Division Bench appointed to receive applications. Rule 1(2) stipulates that the application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds on which the Court is asked to issue a direction, order or writ and has to conclude with a prayer setting out the exact nature of the relief sought. The Rule further stipulates that the application shall be accompanied by an affidavit or affidavits verifying the facts stated therein by reference to the numbers of the paragraphs of the application containing the facts. Such affidavits shall be restricted to facts which are within the deponent's own knowledge and shall further state whether the applicant has filed, in any capacity whatsoever, any previous application on the same facts and, if so, the orders passed. 8. Chapter IV of the Allahabad High Court Rules provides for affidavits and Oath Commissioners. Rule 9(2) stipulates that an affidavit filed on behalf of the petitioners, appellant(s) or, as the case may be, revisionist(s), shall mention the relationship, association or connection of the deponent with the person on whose behalf it has been filed. Rule 12 stipulates that except on interlocutory applications, an affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove. Rule 12 stipulates that except on interlocutory applications, an affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove. On an interlocutory application where a particular fact is not within the deponent's own knowledge but is based on his belief or information received from others, which he believes to be true, the deponent is required to use the expression that he is informed and verily believes such information to be true or words to that effect. Code of Civil Procedure 1908 11. Verification must be by a party pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts. Under sub-rule (2) of Rule 15, a person verifying a pleading has to specify with reference to the paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believes to be true. 12. Affidavits under the CPC are governed by the provisions of Order XIX. Order XIX Rule 3 provides that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated. The Allahabad amendment to Order XIX, inter alia, contains the following in Rule 9: “9. Except in interlocutory proceedings, affidavits shall strictly be confined to such facts as the declarant is able of his own knowledge to prove. In interlocutory proceedings, when the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant shall use the expression “I am informed” and, if such be the case, “and verily believe it to be true” and shall state the name and address of, and sufficiently describe for the purposes of identification, the person or persons from whom he received such information. When the application or the opposition thereto rests on facts disclosed in documents or copies of documents produced from any Court of Justice or other source, the declarant shall state what is the source from which they were produced, and his information and belief as to the truth of the facts disclosed in such documents. (22-5-1915).” Precedent 13. When the application or the opposition thereto rests on facts disclosed in documents or copies of documents produced from any Court of Justice or other source, the declarant shall state what is the source from which they were produced, and his information and belief as to the truth of the facts disclosed in such documents. (22-5-1915).” Precedent 13. In 1910, the Calcutta High Court held in Padmabati Dasi v. Rasik Lal Dhar, that the provisions of Order XIX Rule 3 of the CPC must be strictly observed, and every affidavit must expressly state how much is the statement of the deponent's knowledge and how much is the statement of his belief, and the grounds of belief must also be stated with sufficient particularity. This statement of law in the judgment of the Calcutta High Court was affirmed in a judgment of a Constitution Bench of the Supreme Court in the State of Bombay v. Purushottam Jog Naik. While dealing with the verification of affidavits, the Supreme Court held that the verification must be modelled on the lines of Order XIX Rule 3 CPC whether or not the Code applies: “...Verification should invariably be modelled on the lines of Order 19, Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins C.J. and Woodroffe J. in Padmabati Dasi v. Rasik Lal Dhar, 37 Cal. 259 and endorse the learned Judges observations.” (Emphasis supplied) Agents and Pleaders 5. Mr. Majumder also cited Dalip Singh Vs. State of U.P. (2010) 2 SCC 114 : 3. In Hari Narain v. Badri Das this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations: (AIR p. 1558) “It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterises as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked.” 6. Mr. Debabrata Saha Ray Learned Senior Counsel, appearing on behalf of the petitioner submits that the writ petition was filed by the petitioner through his constituted attorney. The special power of attorney was annexed with the writ petition; by such said special power of attorney one Md. Najmi Alam has sworn the affidavit before the commissioner of this court, at the time of execution of power of attorney, he was major. Thus the affidavit sworn before the commissioners cannot be said illegal. 7. Heard the Learned Advocate, perused the affidavit sworn by power of attorney holder. In Para 2 of the affidavit, power of attorney holder stated that the statement made in Para 1 to 30 of the writ petition is true to my knowledge. The facts of the impugned vacancy notification was of year 2006. Admittedly, considering the present age of the power of attorney holder at the time of alleged vacancy notification, he was a minor. In Wasif Husain Rizvi (supra) the Hon’ble Apex Court, following the Allahabad High Court Rules, has held that application shall be accompanied by an affidavit or affidavits verifying the facts by reference to the nos. of paragraphs of the application containing the facts. Such affidavit shall be restricted the facts which are within the deponent’s own knowledge and shall further said whether the application has filed in any capacity, whatsoever, any previous application on the same facts and, if so, the order passed. of paragraphs of the application containing the facts. Such affidavit shall be restricted the facts which are within the deponent’s own knowledge and shall further said whether the application has filed in any capacity, whatsoever, any previous application on the same facts and, if so, the order passed. Allahabad High Court rule 9 (2) stipulates that an affidavit filed on behalf of the petitioners/appellants or, the case may be, revisionists shall mention the relationship, association or connection of the deponent with the person on whose behalf it has been filed. The Hon’ble Apex Court has also observed decision of Calcutta High Court in the year 1910 held in Padmabati Dasi Vs. Rasik Lal Dhar wherein this court has held that provision of Order XIX Rule 3 of CPC must be strictly observed, and every affidavit must expressly state how much the statements of deponent’s knowledge and how much is the statement of his believe, and the grounds of believe must also be stated that sufficient particularity. 8. In this particular writ petition the petitioner has executed the special power of attorney in favour of the deponent. In the said power of attorney, the executants/petitioner has given power to the deponent to appear personally before the Hon’ble High Court and oath commissioner, on his behalf, in respect of the cases the executants/petitioner also ratified all the activities of his constituted attorney. The nature of power of attorney itself indicates that petitioner has ratified all the actions of the deponent which is not derogatory to his interest. Petitioner has also given power the deponent to sign the writ petition and affirmed the affidavit on his behalf. Special power of attorney executed by the petitioner in favour of the deponent appears to be justifiably given power and knowledge of factum of the instant writ petition through the petitioner to the depondent. The knowledge of petitioner or facts pleaded are knowledge of the deponent by virtue of special power of attorney. There may have some legal flaws, but it shall to affect the entire merit of the writ petition. On that score, I think it necessary to hold that the entire writ petition cannot be dismissed due to such minor discrepancy appearing in the affidavits. 9. Illustrating 2nd ground, Mr. Majumder argued that the petitioner has placed distroted facts before this court by suppressing material facts. On that score, I think it necessary to hold that the entire writ petition cannot be dismissed due to such minor discrepancy appearing in the affidavits. 9. Illustrating 2nd ground, Mr. Majumder argued that the petitioner has placed distroted facts before this court by suppressing material facts. The writ petitioner cannot be allowed to plead untrue facts before this writ court. 10. Respondent No. 6 further pleaded with some of portion of the pleading of the instant writ petition which is similar to that of the earlier MAT 1387 of 2022. He placed on record the Paragraph 8 and 9 and Paragraph 11 of the writ petition which are identical. 11. In support of his contention he cited decisions are as follows: (i) V. Chandra Sekharan Vs. Administrative Officers, (2012) 12 SCC 133 (ii) Dalip Singh Vs. State of U.P. (2010) 2 SCC 114 (iii) Shivshankar Mahapatra Vs. State of Orissa, (2010) 12 SCC 471 12. To decide the issue as raised by the private respondent, it appears to me that, determination of the issue requires extensive consideration of the pleadings. Whether the pleadings are baseless or identical to the earlier pleadings can only be ascertained after entire deliberation of the case in hand. It appears that this issue involves mixed question law and fact. Thus, it cannot be decided at the stage. However, it appears that the pleadings have completed. The matter is otherwise ready for hearing, at this juncture, this court rather intends to hear out the entire writ petition than to dispose of the writ petition on the point of maintainability. Accordingly, the arguments on the second point of maintainability raised by the Learned Counsel for the private respondent set at rest, for the time being. 13. Let the matter be fixed under the heading of hearing on 25th of February 2025 at 02:00 P.M. 14. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions. Later: Mr. Jayanta Samanta, Learned Advocate on behalf of the State submits that the State intends to use affidavit-in-opposition. Let the affidavit be filed within the adjourned date by supplying an advance copy of the affidavit to the petitioner.