Karnataka High Court
John D'Souza vs State Of Karnataka on 1 July, 1987
Equivalent citations: ILR1988KAR1279, 1987(2)KARLJ181
ORDER Doddakale Gowda, J.
Rule.
1. The sole prayer in the Writ Petition is to direct respondent to renew Certificate of Notarial Practice for further period of 3 years with effect from 12-12-1982.
2. State Government after appointing petitioner as Notary granted a Certificate, dated 1-12-1958. It was being renewed from time to time and at each time renewed for a period of three years. Last renewal was due to expire on 12-12-1982. Petitioner, on deposit of necessary fee, sought for renewal through his application, dated 6-8-82. As there was no response before the expiry of the renewed period, petitioner has presented this petition on 13-12-82, for the above relief. By an interim order made on 15-12-1982, this Court has directed that Notary Certificate of Practice granted to the petitioner shall continue to remain in force until further orders.
3. Respondent in its return contends that the State Government has only deferred consideration based on letter dated 6-11-1982 of the Competent Authority and there is no decision either to refuse or grant Certificate and hence grievance is premature. In view of the pendency of certain proceedings before the Bar Council, competent authority has opined that it is better to defer consideration of renewal. Even during the pendency of this Writ Petition, no decision is taken. Explanation offered by the Government Pleader is that as this Court had seized of the matter, no order has been passed.
4. Salient provisions of Notary Act, 1952 (hereinafter referred to as the Act'), to be referred are Sections 3, 5 and 10 and Rules to be referred are 4 to 9 and 13. As per Section 3 of the Act Central Government or the State Government may appoint, any Legal Practitioner or other persons who possess such qualification as may be prescribed as a 'Notary.' Section 5 provides for renewal. Section 10 provides for removal of names on the grounds mentioned therein. Rule 3 of the Rules prescribes the qualification. Rules 4 to 8 prescribe form of application and processing of such application for the purpose of taking a decision. Rule 9 prescribes fee for issue of a Certificate and for renewal. Rule 13 provides for conduct of an enquiry regarding allegations of professional or other misconduct, of a Notary for the purpose of removal.
5. Contention of Sri S.G. Sundaraswamy, learned Counsel for the petitioner, is that as per phraseology of Section 5, renewal is automatic and it must be renewed as of right. More stress is laid on the word 'entitle' contained in Section 5.
Sri S. Udayashankar, learned Government Pleader, relying on the wordings of Section 3 submitted that appointment is discretionary, so also renewal is discretionary and no person can claim as of right that it should be renewed.
Thus, the controversy to be resolved is whether renewal under Section 5 of Act is automatic or discretionary?
6. For the purpose of appreciation of rival contention, it is better to extract Sections 3 and 5 and they read thus:
"Section 3. Power to appoint Notaries :-
The Central Government, for the whole or any part of India, and any State Government, for the whole or any part of the State, may appoint as notaries any legal practitioners or other persons who possess such qualifications as may be prescribed.
Section 5.
Entry of names in the Register and issue or renewal of certificates of practice.
1. Every notary who intends to practice as such shall, on payment to the Government appointing him of the prescribed fee, if any be entitled-
(a) to have his name entered in the Register maintained by that Government under Section 4 and
(b) to a certificate authorising him to practice for a period of three years from the date on which, the certificate is issued to him.
2. Every such notary who wishes to continue to practice after the expiry of the period for which his certificate of practice has been issued under this Section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate of practice renewed for three years at a time."
7. Words 'may appoint' in Section 3 undisputedly confer discretionary power on Central or State Government to make appointment. The phraseology in Section 5 is not the same as in Section 3. Instead of using 'may renew' or like terms of Section 3, it is stated that a Certificate holder is entitled to renewal. Words such as 'at its discretion' or 'at the option of the authority' and/or 'at the option of either lessor or lessee' have derived different connotations. In cases of renewal of licenses for various purposes, invariably discretion is given to the authority.
The word 'Entitled' like Vested' points prima facie to the right - as per Stroud's Judicial Dictionary. The word 'Entitled' is a strong word and signifies a claim of right to give a right or title to, to qualify for with a direct object of the person - as per Words and Phrases, Volume 14A.
The word 'entitle' used in Section 5 in contradiction to the words 'may', 'discretion' and 'option' implies a must or as of right. It is not as if Parliament was unaware of this distinction. It is impossible to accept the plea of the learned Government Pleader that the State has got discretion and the word 'entitle' used in Section 5 has to be interpreted or construed as conferring the discretionary power.
8. In para 3 of its return, after referring to pendency of proceedings before the Bar Council, it is stated that the Government has not been swayed away nor acted on the views of competent authority but has independently deferred consideration. If, as referred to in the letter of the competent authority, there are allegations of misconduct against a Notary, State Government can resort to Section 10 of the Act and Rule 13 of the Rules. Without resorting to those provisions, appointment of Notary cannot be cancelled indirectly. There cannot be indefinite postponement of consideration of renewal. In case, it is not renewed before the expiry of the period, he will have to stop functioning as a Notary, which will be the effect of refusal.
9. During the pendency of this Writ Petition, petitioner has in fact, applied for renewal on 12-9-85 and in Notification dated 6-1-1987 notifying, the names of all notaries, a note is appended stating that Writ Petition filed by the petitioner is pending and is functioning pursuant to interim order of this Court. Thus, it is clear that this is a demand for renewal for the subsequent period also.
10. For the reasons stated above Writ Petition succeeds ; a Writ in the nature of Mandamus shall be issued to respondent, directing State to renew the certificate of Notarial Practice for a period of 3 years as prayed in applications dated 6-8-1982 and 12-9-1986. The direction given shall not be construed as a bar for respondent taking such action as is permissible under law. Rule made absolute.