Madhya Pradesh High Court
Bhagwati Prasad Singhal vs State Government Of Madhya Pradesh on 16 January, 1996
Equivalent citations: 1998(1)MPLJ46
ORDER T.S. Doabia, J.
1. This petition has been preferred against a notification issued by the State Government, copy of this is Annexure P/1. This notification stands issued under the Notaries Act, 1952 (hereinafter referred to as the Act). The number of persons who are to be appointed as notaries has been fixed at seventeen. It is this fixation of number as seventeen which has led to the filing of the present petition in this Court under Article 226 of the Constitution.
2. The grievance raised by the petitioner is that the State Government is not within its rights to fix the number at its own. According to him while doing so there must be material available to it. Earlier the number of notaries in the Civil District of Gwalior was fixed at fifteen. Vide Annexure P/1, this has been fixed at seventeen.
3. Before noticing the contentions of the learned counsel for the petitioner, the statutory provisions be noticed. These are section 3 of the Act and Rule 7(3) of the Rules. These read as under :
SECTION 3 "3. Power to appoint notaries. - The Central Government, for the whole or any part of India, and 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."
RULE 7(3) "7. Recommendation of the competent authority. -
"(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 areas in which he proposes to practice as a notary;
(b) whether having regard to the commercial importance of the area in which the applicant proposes to practice 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 the 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 belong 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 applicant.
4. The learned counsel for the petitioner submits :
(i) that, the State Government has no power to increase the number of notaries;
(ii) that, if the number is to be increased there should be some material before it; and
(iii) that, in case the number is to be increased there should be recommendation of the competent authority under Rule 7 of the Rules.
5. I am of the view that there is no merit in the argument raised by the learned counsel for the petitioner. The power to appoint a notary or notaries is given in section 3 of the Act. As to how many persons are to be appointed as such is left to be decided by the State Government. The legislature in its wisdom has left this power to the State Government. This fixation of number is one facet of exercise of sovereign power. At the same time the State Government, has chosen to curtail its power and has decided to abide by the recommendations which may be made by the competent authority in terms of rule 7. Thus maximum limit has been fixed under section 3, within the outer limit so fixed appointment as per criteria given in Rule 7(3) is to be made. It is at this stage, the question as to whether an additional notary is required to be there or not is to be examined and decided. Thus, a reading of section 3 of the Act along with rule 7 makes it crystal clear that notwithstanding the power given under section 3 of the Act, regarding fixation of number of Notaries the question as to whether a notary is really required or not is to be gone into in terms of rule 7(3) of the Rules. Reading of section 3 and Rule 7(3) together makes it apparent that argument raised by the petitioner that arbitrary power has been conferred on the State Government is not sustainable. The question as to whether there exists a need for appointment of Notaries or not is to be decided under Rule 7(3). This exercise is yet to be gone into. The competent authority after having regard to the commercial importance of the area and the number of existing notaries practising in the area is to decide as to whether any additional notary is required or not. It is at this stage, material would be available with the State Government and it would examine whether a need is really there or not. Merely because the number has been fixed at seventeen furnishes no cause of action to the petitioner. The number fixed vide notification annexure P/1 is the outer limit within which Rule 7(3) would apply.
6. This petition is without merit and the same is dismissed.