Orissa High Court
Nityananda Behera vs State Of Orissa And Anr. on 15 May, 1996
Equivalent citations: AIR1997ORI1, 1997(II)OLR207, AIR 1997 ORISSA 1, 1997 CCJ 629 (1997) 2 ORISSA LR 207, (1997) 2 ORISSA LR 207
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner calls in question legality of decision of the Government of Orissa, in Food, Supply and Consumer Welfare Department holding that as a notary he held an office of profit, and therefore, was ineligible to hold full-time office of the President of District Consumer Disputes Rederessal Forum of Mayurbhanj district (in short "the District Forum").
2. A brief reference to the factual aspects would suffice before we deal with the pivotal question, whether a notary holds an office of profit, thereby becoming ineligible to hold full-time office of the President, Consumer Forum.
By a notification dated 3.4.1995 issued under Sub-sections (I) and (I-A) of Section 10 of the Consumer Protection :Act, 1986 (in short "the Act"), petitioner was designated as President of the District Forum of Mayurbhanj district. He was required to furnish affidavit as per Sub-rule (5) of Rule 3 of the Orissa Consumer Protection Rules, 1988 (in short "the State Rules"). It was indicated that appointment was subject to verification of political activity. After the notification, the Director, Consumer Affairs by letter dated 7.4.1995 (Annexure-3) intimated the petitioner the terms of his appointment with reference to Sub-rule (5) of Rule 3 of the State Rules. The petitioner was asked to furnish an affidavit to the effect that he does not and shall not have membership of any political party or any Communal Organisation; and have any financial or other interests as are likely to affect prejudically his functions as a member of the Forum. He was also required to furnish an undertaking that he shall not practise in the Court of law during the tenure of his appointment. Petitioner wrote a letter on 24.4.1995 to the Government to permit continuance as Notary while holding full-time office as President. Same was turned down by the Government vide letter dated 6.6.1995, copy of which is annexed as Annexure-2 to the writ application. It was indicated in the said letter that under Rule 10 of the Notaries Rules, 1956 (in short, "the Rules") different fees are payable to a notary for doing different notarial work and the post held by him is an office of profit, and therefore, his request to continue as notary while holding the full-time office of the President of the Consumer Forum was not accepted. Petitioner requested the authorities to consider his case afresh as according to him a notary does not hold an office of profit. As the petitioner's representation for reconsideration of the view expressed by the authorities did not yield any result, and he was telegraphically required to intimate whether he had resigned from the post of Notary he has filed this writ application for interference.
3. According to learned counsel for petitioner, by functioning as a notary, the petitioner does not hold any office of profit and therefore, the view expressed by the authorities cannot be maintained. According to Mr. K. Patnaik learned Additional Government Advocate Rule 3(6)(g) and Rule 3(5)(b) of the State Rules, refer to financial or other interests which are likely to affect prejudically a person's functioning as a member of the Forum. Since the petitioner was undisputedly receiving certain amounts as fees payable under Rule l0 of the Rules, the authorities have rightly held that the, petitioner was not entitled to function as President of the District Forum. while functioning as a notary. Additionally it is submitted that the petitioner was required to furnish an undertaking that he shall hot practise in the Court of law during the tenure of his appointment. Since the petitioner ceases to be an advocate, during the period he cannot function as a notary and therefore. the question whether by functioning as a notary he holds an office of profit is merely academic: By way of reply, it was submitted by learned counsel of the petitioner, that the said reason had not been indicated by the authorities.
4. Section 10 of the Act deals with composition of District Forum. Sub-section (1 )(a) provides that each District Forum shall consist of a person, who is or has been or is qualified to be a District Judge, to be nominated by the State Government to be its President. Sub-section (3) of Section 10 of the Act provides that the salary or honorarium and other allowance payable to and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government. Rule 3 of the Orissa Rules deals with salary or honorarium and other allowances and terms and conditions of the President and members of the District Forum Rule 3(5) deals With certain prohibitions to be taken note of before appointment and Rule 3(6) provides the contingencies when the President or Member of the District Forum ceases to be the President or Member as the case may be. It is fairly accepted by the learned counsel for petitioner that if a person holds an office of profit, he shall be disqualified. Therefore, the vital question is whether the petitioner holds an office of profit by functioning as notary.
5. Under Section 138 of the Negotiable Instruments Act. 1881. the Government of India have the power to appoint notaries public, But only for the limited purposes of performing functions under that Act. The object of enacting the Notaries Act, 1952 (in short "the Notaries Act") was to empower the Central and State Governments to appoint notaries not only for the limited purposes of the Negotiable Instruments Act, but generally for all recognised notarial purposes, and to regulate the profession of such notaries: Section 8 of the Notaries Act deals with functions of notaries. Formerly a notary was commonly called a Notary-public and he was appointed under the Negotiable Instruments Act. A notary has been referred to in many important statutes e.g. in Section 139 of the Code of Civil Procedure. 1908, Section 297 of the Code of Criminal Procedure, 1972. Section 57 of the Indian Evidence Act, 1872 . As per Section 11 of the Notaries Act, any reference to notary public in any other law shall be construed as a reference to a notary entitled to practise under the said Act. Rule .3 of the Rules deals with eligibility criteria for appointment as notary.
6. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from oat of Government revenues are important factors in determining whether that person is holding an office of profit under the Government. (See Abdul Shakur v. Rikhabchand. AIR 1958SCSI (sic). An office has to be held under someone for it is impossible to conceive of an office held under no one. For holding an office of profit under the Government a person need not be in the service of the Government and there need not to be any relationship of master and servant between them. (See Gurgobinda Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254. The office in question must be held under a Government and to that some salary, emoluments or other allowance are attached. For finding out whether an office in question is an office under a Government and whether it is an office of profit, the relevant tests would be (1) Whether the Government makes the appointment ? (2).Whether the Government has the right to remove or dismiss the holder ? (3) Whether the Government pays the remuneration ? (4) What are the functions of the holder ? Does he perform them for the Government ? and (5) Does the Government exercise any control over the performance of those functions ? This test was indicated by the Apex Court in Shivamurthy Swami v. Sangamna Adanappa (1971) 3 SCC 870. The word "profit" connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carried any profit. (See Rarbhari Bhimaji Rohamare v. Sanker Rao Genji Kokhe, AIR 1975 SC 575).
7. Admittedly a notary is neither paid a monthly salary nor any fees by the Government. The fee that is paid to him is not by the Government, but by the individual client whom he serves. He renders no service to the Government in the discharge of its sovereign functions or in its carrying on the civil administration of the State. He is not bound by the Government Servants' Conduct Rules. He has not to apply for leave if he wants to leave the station or does not want to attend to his work on a particular day. There exists ho relationship of master and servant between the State Government and him. The duties assigned to him are of a professional nature. Functions of a notary are indicated in Section 8 of the Act. A notary carries on a profession and is not in the employment of any one including the State Government as evident from the preamble of the Act which reads that The Act is to regulate the profession of notaries. The fact that a notary carries on profession as evident from Section 10(d) of the Act, it refers to profession and other misconduct, Judged in the aforesaid background, it cannot be held that a notary holds an office of profit. To that extent the view of the authorities is vulnerable and is nullified,
8. Further stand of the learned counsel for State is that the petitioner is required to furnish an undertaking that he ceased to be an Advocate while functioning as President of the District Forum. Section 3 of Notaries-Act. deals with the power to appoint notaries. It provides that 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. A bare reading of Section 3 of the Notaries Act. makes it clear that only a legal practitioner or other person, who possesses the prescribed qualification can be appointed as a notary. It is not in dispute that the petitipner was appointed as notary because he was a legal practitioner. The need of his furnishing an undertaking not to practise in any Court of law and the consequences there of are parts of the terms and conditions of appointment as president. A certificate authorising to practise as notary is operative for a period of three years. if a notary desires to continue practice, he shall have to seek renewal. It goes without saying that if a person is not a legal practitioner while seeking renewal, his prayer for renewal cannot be accepted as his functioning as a legal practitioner is the sine qua non for appointment as a notary. A notary cannot function as such if at any point of time he ceases to be a legal practitioner. That aspect shall be considered by the concerned authorities if such a situation arises.
The writ application is disposed of accordingly. No costs.
P.C. Naik, J.
9. I agree.