Orissa High Court
Kamal Lochan Panda And Ors. vs State Of Orissa And Ors. on 24 October, 2000
Author: P.K. Mohanty
Bench: P.K. Mohanty, A.S. Naidu
JUDGMENT P.K. Mohanty, J.
1. This writ petition is registered on the basis of a letter/representation received by the Hon'ble Chief Justice from some members of the Ganjam Bar Association, Berhampur.
2. The grievance of the petitioners is that, Opp. party No. 1 has been making appointment of Notaries, contrary to the provisions of the Notaries Act, 1952 and the Notaries Rules, 1956 according to its sweet will. It is alleged that in spite of objection filed by the petitioners to the appointment of Opp. parties 2 and 3 as Notaries for Berhampur, they have been appointed as such, in spite of their ineligibility. The petitioners have prayed for a direction to State Government to stop such illegal appointment of Notaries and for a direction that only after inviting application through advertisement and following the due procedure laid down under law, appointment of Notaries should be made.
3. Opp. party No. 1 has filed a comprehensive counter affidavit denying the allegations made in the petition. It is asserted that the Secretary, Law Department has been declared as the competent authority under Sub-rule (1) of Rule 4 of the Notaries Rules, 1956, but there is no provision to advertise the vacancy/post, time and again inviting application for the same. However, on receipt of applications from the deserving advocates, the competent authority as and when felt necessary, use to call for objections as required under Rule 6(2)(a) of the Rules. After receipt of objections, if any, against any particular applicant, an enquiry is made and, thereafter, names are recommended to the State Government for appointment. It is specifically asserted in the counter that the intending advocates use to apply for Notaryship and after receipt of the same, the competent authority use to scrutinise it and pass appropriate order either rejecting the application under Rule 6(1) or take further action in terms of Rule 6(2) of the Notaries Rules. With regard to the application of Opp. parties 2 and 3, it is admitted that after objections were invited one objection was received against them from some members of the District Bar, through the District Judge, Ganjam-Gajapati, copy whereof is Annexure-A. But the District Judge, who is also the inspecting authority of Notaries, had recommended their case in the forwarding letter, copy of which is Annexure-B. The main allegation of the members of the Bar was that, Opp. parties 2 and 3 should not be appointed as because, they were continuing as A.P.Ps. However, they resigned from the post of A. P. P. and taking note of such fact, their cases were recommended for appointment, they having found suitable and there having been justification for further appointment. No other Advocate having applied for the same, there was no impediment in their appointment.
4. In view of the contentions raised by the Opp. parties, the scheme of the Act and the Rules made, thereunder, for appointment of Notaries and the requirement thereof are necessary to be considered. Under Section 3 of the Notaries Act, 1952 (hereinafter called "the Act"), the Central Government in case of whole or any part of India and State Government for the whole or any part of that State may appoint as Notaries, any legal practitioner or other persons, who possess the qualification as may be prescribed. Section 5 of the Act provides for entry of names in the Register and issue or renewal of certificate or practice. But under Section 5(1)(b), a Notary can be authorised to practice for a period of three years from the date of issue of any certificate, subject to further renewal as contemplated under Section 5(2). Functions of the Notaries are enumerated under Section 8 thereof and Section 10 contemplates the grounds on which the names of a Notary can be removed from the Register.
5. Rule 3 prescribes qualification for appointment and stipulates apart from other conditions that he should have practised as legal practitioner for at least ten years. Application for appointment as a Notary is contemplated under Rule 4 thereof. Under Rule 6, the competent authority is to examine every application received by him and if he is satisfied that the applicant does not possess the qualification specified in Rule 3 or that any previous application of the applicant for appointment as a Notary was rejected within six months before the date of application, shall reject it and inform the applicant accordingly. But if the competent authority does not reject the application under Sub-rule (1) of Rule 6, he shall publish in the official gazette a notice of the application inviting objection, if any, to the appointment of the applicant as a Notary to be submitted within 14 days of such publication. The competent authority may ascertain from the Bar Council or Bar Association or from any other authority where the applicant has proposed to practice, the objections, if any, to the appointment of the applicant as a Notary. Under Rule 7, the competent authority after holding such enquiry as he thinks fit and after giving the applicant an opportunity of making a representation against the objection, if any, received within the time fixed under Sub-rule (2) of Rule 6, make a report to the appropriate Government recommending either that the applicant may be allowed for the whole or any part of the area to which the application relates or that it may be rejected.
6. Sub-rule (3) of Rule 7 stipulates the conditions on which the competent authority is to make recommendation, Sub-rule (3) of Rule 7 may be quoted hereunder :
"Rule 7. Recommendations of the competent authority: (1) *** *** *** (2) *** *** ***
(3) In making his recommendation under Sub-rule (1), the competent authority shall have due regard to the following matters, namely :
(a) whether the applicant ordinarily resides in the area in which he propose to practise as a notary;
(b) whether, having regard to the commercial importance of the area in which the applicant proposes to practise and number of existing notaries practising in the area it is necessary to appoint any additional notaries for the area.
(c) whether, having regard to his knowledge and experience of commercial law and the nature of the objections, if any, raised in respect of his appointment as a notary and in case of a legal practitioner also to the extent of his practice, the applicant is fit to be appointed as a notary;
(d) whether the applicant belongs to a firm of legal practitioners, whether having regard to the number of existing notaries in that firm, it is proper and necessary to appoint any additional notary from that firm, and
(e) where application from other applicants in respect of the area are pending, whether the applicant is more suitable than such other applicants."
On receipt of the report of the competent authority, the appropriate Government is to consider the report and take an appropriate decision and make such order as the Government thinks fit and the applicant has to be informed of the order passed by the appropriate Government under Sub-rule (1). The applicant, whose application has been rejected or allowed in respect of only a part of the area to which it relates or against whom an order as to cost has been made under Sub-rule (1) may within 60 days of the date of the order apply to the appropriate Government for reviewing the order and that Government may, after making such further inquiry as it thinks fit, pass such order as it considers necessary. On the application being allowed, the Government shall appoint the applicant as a Notary and direct his name to be registered in the Register of Notaries maintained by the Government under Section 4 of the Act and issue a certificate on payment of prescribed fees authorising him to practise in the area to which the application relates or in such part thereof as the appropriate Government may specify in the certificate, as a Notary for a period of three years from the date on which the certificate is issued to him. Rule 11 of the Rules prescribes as to how the transaction of business is to be made by a Notary. Rule 14 requires every Notary to submit to the Government an annual return in Form-14 of the Notaries Act done by him during the preceding year in the first week of January every year.
7. On a proper reading of the aforesaid provisions with regard to appointment of Notary. It is abundantly clear that the competent authority has to make proper enquiry and scrutinise the applications and to satisfy itself that the norms mentioned in Sub-rule (3) of Rule 7 have been complied with. It needs no emphasis that a Notary appointed under the Act is to discharge the functions as contemplated under Section 8 of the Act and as such, before appointing a person as a Notary, the requirements of law has to be scrupulously followed otherwise the purpose of appointment of a Notary entrusting it with important functions and responsibilities like verifying, authenticating or attesting instruments, presentation of promissory notes etc. for acceptance note or protest the dishonour of non-acceptance of promissory note etc., note or drawing up ship protest relating to damages etc., and to take affidavit and administer oath to persons would be fraustrated. But from the counter affidavit filed by the Opp, party No. 1, it appears that in general while considering applications proper and adequate precautions and scrutiny are not made and the applications are processed in a casual manner. The competent authority has to find out the suitability of a person for appointment, justification for appointment in the area, fixation of number of Notaries and the host of other factors as contemplated in the Rules.
8. However, we do not find any illegality in appointment of Opp. parties 2 and 3, specially when there was no other candidate and the grounds of objection that they were functioning as A.P.Ps. no more existed, since they had already resigned from such posts, inasmuch as the District Judge had made a recommendation in their favour.
9. Before parting with the case, we would like to observe that, while dealing with an application for appointment of a Notary the competent authority and the State Government shall strictly and scrupulously, follow the procedure laid down under the Notaries Act, 1952 and the Notaries Rules, 1956 and only after due scrutiny, enquiry and other relevant considerations, if they are satisfied that the applicant fulfills the conditions and requirements laid thereunder and there is justification for such appointment in the area, then recommend/appoint such person as a Notary. The appropriate authorities are also required to take measures for enforcing post appointment requirements.
The writ petition is disposed accordingly.
A.S. Naidu, J.
10. I agree.