Madhya Pradesh High Court
Suryakant Chandrakar vs State Of Madhya Pradesh And Ors. on 25 April, 2000
Equivalent citations: AIR2000MP260, AIR 2000 MADHYA PRADESH 260
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. Suryakant Chandrakar (petitioner in W.P. No. 3715/1998), Mukund Marotirao Khanti (petitioner in W.P. No. 2704/98) as also Smt. Gyani Lunia, (respondent No. 3 in both the writ petitions), Manju Kiran Kalia (respondent No. 4 in W.P. No. 3715/98 and respondent No. 5 in W.P. No. 2704/98), Gopinath Sao (respondent No. 5 in W.P. No. 3715/98 and respondent No. 4 in W.P. 2704/98), hereinafter referred to as the 'appointees', besides 9 other persons were candidates for appointment as Notaries in Mahasamund Tahsil of the District of Raipur. Petitioners being aggrieved by their non-appointments and appointments of respondents No. 3 to 5 aforesaid, have filed the present writ petitions and pray for issuance of an appropriate writ, order or direction commanding respondents No. 1 & 2 to appoint them as notaries for Mahasamund Tahsil for a period of 5 years with effect from 30th of July 1998 and to quash the appointments of respondents No. 3 to 5 as Notaries.
2. Briefly stated facts giving rise to the present writ petition are that respondent No. 2, the District & Sessions Judge, Raipur i.e., the competent authority, issued notice dated 24th of Sept. 1997 inviting memorials in prescribed format for appointment of two posts of Notaries in Mahasamund Tahsil. Petitioner as also respondents No. 3 to 5; besides nine other persons submitted their memorials. Vide GSR 370 (E) dated 8th of July 1997, certain modifications were made in Form-I, which is the form prescribed for submission of memorial under Rule 4 of the Notary Rules 1956. It seems that the State Government brought to the notice of the competent authority that the memorials submitted by the applicants are not in prescribed format and accordingly the competent authority by its letter dated 16th of January 1998 addressed to the President of the Advocates' Association, Mahasamund informed him that the applicants be apprised to submit the memorials in the prescribed format. In the said communication, names of all the persons who were applicants for appointment as Notary were mentioned.
3. It is the stand of petitioners that the aforesaid communication of the competent authority addressed to the President of the Advocates' Association was not brought to their notice and consequently they did not submit the memorial in the prescribed format as amended by GSR 370(E) dated 8th of July 1997. This assertion of the petitioners has been denied and an affidavit filed by the President of Bar Association has been placed on record to demonstrate that in fact, petitioners were informed about the communication of the State Government asking them to send the memorial in prescribed format. After issuance of the aforesaid letter to the President of Advocates' Association, 7 persons did submit the memorials in prescribed format and 7 persons including petitioners did not do so. The competent authority, thereafter, by communication dated 9th of February 1998 addressed to the President of Advocates' Association brought to his notice, failure of 7 applicants, including the petitioners in not submitting the memorials in the prescribed format. In the said communication, the President was informed to apprise the candidates of submitting the memorials within 4 days. Petitioners did not submit the memorials in the amended form. Petitioners seek to explain that by saying that the aforesaid communication of the competent authority was not brought to their notice; which assertion as stated earlier has been denied by the President of Advocates' Association. The competent authority considered the memorials of 7 persons and forwarded the same to the State Government. The State Government by the impugned order has appointed respondents No. 3 to 5 as Notaries.
4. Mr. Alok Aradhe appears on behalf of the petitioner in W.P. No. 3715/98 whereas Shri Sharad Verma appears on behalf of the petitioner in W,P. No. 2704/98. Respondents 1 & 2 are represented by Shri K. C. Ghildiyal, Govt. Advocate whereas Shri Ahluwalia appears for respondent No. 5 in W.P. No. 3715/98 who is respondent No. 4 in W.P. No. 2704/98 Mr. R. S. Jha, appears for respondents No. 3 & 4 in W.P. No. 3715/ 98 who are respondents No. 3 & 5 in W.P. No. 2704/98.
5. Mr. Aradhe as also Mr. Verma appearing on behalf of the petitioners submit that while appointing respondents 3 to 5 as notaries, no recommendation at all was made by the competent authority as required under Rule 7 of the Rules. In this connection, Shri Aradhe has drawn my attention to para 7 of the return filed by respondent No. 2 in which it has been stated as follows :--
"It is submitted that the respondent No. 2 has acted within four corners of law and discharged his obligation as casted upon him by respondent No. 1. He has merely forwarded the names of the willing Advocates. He submitted their memorials to respondent No. 1. No recommendations, were endorsed by respondent No. 2.
Mr. Aradhe as also Mr. Verma contend that in view of the aforesaid stand of respondent No. 2 itself order appointing respondents 3 to 5 as Notaries cannot be allowed to stand. In support of their submission, they have placed reliance on a judgment of this Court in case of Ashok Kumar Chowdhary v. State of M.P., 1998 (2) Jab LJ 318: (AIR, 1998 MP 76) and my attention has been drawn to paragraph 11 of the said judgment, which reads as follows (at page 78 of AIR) :--
"After the applications are received, the competent authority, that is District Judge should not act as a Post-Office and forward the papers to the State Govt. The competent authority is bound to follow the procedure laid down in Rule 7 of the Rules. When there are more than one applications then the competent authority should have made recommendations for appointment of Notary indicating the name of applicant who is more suitable than other applicants. From the file it appears that enquiry as provided under Rule 7(3) has not been conducted. There is no endorsement by the District Judge regarding knowledge and experience of each applicant and their suitability for appointment. The Notaries are required to perform a responsible job and they cannot be appointed in an arbitrary manner. The Notary performs very important functions and his actions are having far reaching effects. He must have sound knowledge of the laws referred in Rule 7 and in respect of Notaries Act, Oaths acts, stamp-duty, conveyance and various types of documents and local laws. A confidential enquiry in respect of honesty and integrity before the licence is issued, should be held to determine the suitability of the applicant to hold such a creditable post of responsibility and credibility. The competent authority should keep it in mind and send the recommendations for appointment of Notary after receiving the applications. In the present case, the competent authority has not sent recommendations."
6. Mr. K.C. Ghildiyal, Govt. Advocate, appearing on behalf of respondents 1 & 2 submits that as the competent authority has forwarded the memorials of respondent Nos. 3 to 5 along with other documents, same would tantamount to recommendation by the competent authority and as such the whole assumption on which the petitioners have proceeded that there was no recommendation by the competent authority, is erroneous on fact. In addition thereto, Mr. Ghildiyal submits that as the petitioners have not submitted their memorials in the amended form as required to be done, the aforesaid question is not fit to be gone into at the instance of the petitioners. Mr. R.S. Jha appearing on behalf of the answering respondents also contends that the petitioners having not chosen to file their memorial in the amended form; if any irregularity or illegality has occurred while appointing respondents 3 to 5 as Notaries, same is not fit to be gone into, at the instance of the petitioners. In support of this submission, he has placed reliance on a judgment of the Supreme Court in case of R.K. Jain v. Union of India, (1993) 4 SCC 119 : (AIR 1993 SC 1769). He has drawn by attention to paragraph 74 of the said judgment which reads as follows (at page 1803 of AIR) :
"Shri Harish Chander, admittedly was the Senior Vice President at the relevant time. The contention of Shri Thakur of the need to evaluate the comparative merits of Mr. Harish Chander and Mr. Kalyan-sundaram a senior-most member for appointment as President would not be gone into in public interest litigation. Only in a proceeding initiated by an aggrieved person it may be open to be considered. This writ petition is also not a writ of quo-warranto. In service jurisprudence. it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person."
7. Mr. Ahluwalia appearing on behalf of the answering respondents has taken the stand that Rule 7 of the Rules has to be read along with Rule 6 of the Notaries Rules 1956, hereinafter referred to as the 'Rules', and the very fact that the memorials of answering respondents were not rejected under Rule 6 of the Rules and the competent authority did not invite objections from the Bar Council, Bar Association etc., under Rule 6(2)(b) of the Rules and forwarded the names of the answering respondents, clearly go to show that in fact recommendations were made by the competent authority.
8. In view of the rival submissions made on behalf of the parties following questions fall for determination :
(i) Whether the validity of appointments of respondents 3 to 5 can be gone into at the instance of the petitioners?-
(ii) Whether the appointment of respondents 3 to 5 suffers from procedural ultra vires?
It is not in controversy that the petitioners initially submitted memorials for appointment as Notaries. After submission of memorials, the President of the Bar Association was apprised that the memorials of the petitioners besides other persons were not in the prescribed format. There is a serious controversy as to whether the President of the Association apprised the petitioners about the request of competent authority to submit the memorial in the amended form. Be that as it may, in case, the memorials of the petitioners were not in prescribed format, the competent authority ought to have apprised the petitioners directly instead of informing the President of Bar Association. In any view of the matter, the petitioners were candidates for appointment as Notaries and it is no body's case that they are not eligible for appointment as Notary. They cannot be said to be interlopers, In such a situation, I am not inclined to sustain the objection of Shri Ghildiyal as also Mr. Jha that the legality or otherwise of the appointment of respondents 3 to 5 be not gone into at the instance of the petitioners. As regards the authority relied on by Shri Jha, same is clearly distinguishable. Here in the present case, prayer made by the petitioner is not only to quash the order of appointment of respondents 3 to 5 as Notaries, but also to issue a writ of mandamus directing respondent No. 1 to appoint them as Notaries. In such a situation, 1 am of the opinion that the petitioners have locus standi to canvass the legality or correctness of the action of respondent No. 1 in appointing respondent Nos. 3 to 5 as Notaries.
9. Appointment of Notaries is governed under the provisions of the Notaries Act 1952 and the Rules framed thereunder i.e., Notary Rules 1956. Rule 4 of the Rules provides for making application for appointment as Notary. For appointment of a Notary, a candidate is required to submit his application in the form of a memorial addressed to such officer or authority of the appropriate Government as that Government may, by notification in the official Gazette, designate in this behalf. Such an officer or authority is known as competent authority and it is common ground that the District and Sessions Judge has been designated as the competent authority. For being eligible for appointment as a Notary, one has to be a practising legal practitioner atleast for 10 years on the date of application and various other categories of people have also been made eligible for appointment as a Notary. Those persons who claim eligibility on account of having practised as a legal practitioner for 10 years are required to submit the memorial in accordance with Form-I attached with the Rules. On the submission of the Memorial, the competent authority is required to examine the same and in case, he is satisfied that the applicant does not possess the qualification as specified in Rule 3 of the Rules, the competent authority is obliged to reject such memorial. The competent authority is further obliged to reject memorials of such applicants whose previous application for appointment as a Notary was rejected within six months. All those applications which are not rejected under Rule 6(1) of the Rules, the competent authority in his discretion may invite objections, if any to the appointment of the candidates from any Bar Council, Bar Association, Incorporated Law Society or other Authorities.
10. Rule 7 of the Rules confers power on the competent authority to make recommendation to the appropriate Government after holding such enquiry as he thinks fit and after giving the applicant an opportunity of making representations against the objections, if any. Rule 7 of the Rules, which is relevant for the purpose reads as follows :
7. Recommendations of the competent authority.-
(1) The competent authority shall, after holding such inquiry as he thinks fit and after giving the applicant an opportunity of making his representations against the objections, 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 application may be allowed for the whole or any part of the area to which the application relates or that it may be rejected.
(2) The competent authority shall also make his recommendation in the report under Sub-rule (1) regarding the persons by whom the whole or any part of the costs of the application including cost of hearing if any, shall be borne.
(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 proposes to practise as a Notary;
(b) whether, having regard to the commercial importance of the area in which the applicant proposes to practise and the 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) Where 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 applications from other applicants in respect of the area are pending, whether the applicant is more suitable than such other applicants.
A plain reading of Rule 7(1) of the Rules makes it clear that the competent authority is required to make recommendation either that the application may be allowed for the whole or any part of the area to which the application relates or that it may be rejected. Under Rule 7(3) of the Rules, the competent authority while making recommendation is required to give due regard to various aspects enumerated in Clauses (a) to (e). After the report of the competent authority, the appropriate Government is required to consider the same and make appointment of Notaries. The State Government while making appointment of a Notary is required to consider the report. Here, in the present case, the competent authority has stated in clear terms that he did not make any recommendation. From the letter of competent authority dated 2nd of March 1998, it is apparent that he has just forwarded the memorials of 7 persons including respondents 3 to 5 along with the other documents to the State Government for appropriate action. The original records have been produced before me by Mr. Ghildiyal and a perusal thereof also does not show that the competent authority had made any recommendation as required under Rule 7 of the Rules. In fact, he has forwarded memorials of all the applicants along with the documents. Such a recommendation was obliged to be made by the competent authority under Rule 7 of the Rules. Non-rejection of the memorials under Rule 6 of the Rules and forwarding the same alongwith the documents of the respective memorialists, in my opinion, cannot be construed as recommendation of the competent authority. He has thus failed to discharge his statutory obligation. That being so, appointment of respondents No. 3 to 5 as Notaries suffers from procedural ultra vires and cannot be allowed to stand. The view which I have taken finds support from the judgment of this Court in case of Ashok Kumar Chowdhary (supra).
11. In the result, writ petition is allowed. Order dated 13-7-1998 appointing respondent Nos. 3 to 5 as Notaries is quashed and respondents No. 1 & 2 are directed to proceed in the matter in accordance with law afresh. In the facts and circumstances of the case, there shall be no order as to cost.