Madhya Pradesh High Court
Smt. Maya Dwivedi vs The State Of Madhya Pradesh Judgement ... on 3 December, 2013
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No.13798/2008)
Smt. Maya Dwivedi
Vs.
State of M.P. & others
PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV
Counsel for Petitioner Shri Y.P. Sharma, Advocate
Counsel for respondent No. 1 Shri S.S. Bisen, Govt. Advocate
Counsel for respondent No.2 Shri D.S. Baghel, Advocate O R D E R (3.12.2013) PER SANJAY YADAV, J Challenge putforth in the present petition is to an order dated 14.8.2008 whereby respondent No. 2 has been appointed as Notary by the State Government.
2. The said appointment has been made on the basis of panel sent by the learned District and Sessions Judge Sidhi, purportedly under Rules, viz., The Notaries Rules, 1956 and in exercise of the powers under Rule 7 thereof.
3. It is contended by learned counsel for the petitioner that the recommending authority without formulating a recommendation, strictly in consonance with Rule 7, has simply forwarded a panel to the State Government and the State Government randomly picked up the name of respondents and issued the impugned letter of appointment. This action on the part of respondents, it is urged, being de hors the Rules, the same is therefore, liable to be quashed. The petitioner places reliance on Rule 7 to substantiate his claim. The reliance is also placed on the judgments by this Court in Ashok Kumar Choudhary v. State of M.P. and others : 1998 (2) JLJ 318, 2 W.P. NO. 13798/2008 Suryakant Chandarkar v. State of M.P. and others (AIR 2000 MP
260) and Ayaj Ahmed Khan and others v. State of MP and others (W.P. No. 7328/2008)
4. The respondents on their return refute the averments made by the petitioner. It is strenuously contended by the learned Counsel appearing for recommending authority, i.e., District & Sessions Judge, that there being no procedure prescribed under the Rules as to the mode which is required to be adhered to while selecting more suitable candidates for the purpose of appointment of a Notary, and the District and Sessions Judge merely being a recommending authority has discharged his functions as such, under the Rules. It is contended that District & Sessions Judge is not required to hold an examination nor an interview to adjudge the suitability of a person before sending the recommendation to the State Government. It is also contended that the recommending authority after receiving the applications under the Rules has formulated a panel and forwarded the same to the State Government which is an appointing authority under the Act. It is, therefore, contended that, there is no error in adhering to the procedure as has been followed by the District and Sessions Judge in recommending the name for appointment as Notary by sending the panel of eligible persons to the State Government.
5. Appointment of Notaries are governed by the Notaries Act, 1952 and the Rules made thereunder, viz., the Notaries Rules, 1956.
6. Section 3 provides for appointment of Notary, stipulating therein:
"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."3 W.P. NO. 13798/2008
7. Section 15 empowers the Central Government to frame Rules and in exercise of such powers it has framed Rules, viz., The Notaries Rules, 1956; Rule 3 stipulates the qualification, a person should have, if he is to be appointed as a Notary. It provides for;
"3. Qualifications for appointment as a notary. No person shall be eligible for appointment as a notary unless on the date of the application for such appointment
(a) a person had been practicing at least for ten years, or (aa) a person belonging to Scheduled Caste/Scheduled Tribes and other backward classes had been practicing at least for seven years, or (ab) a woman who had been practicing at least for seven years, as a legal practitioner, or
(b) he had been a member of the Indian Legal Service under the Central Government, or
(c) he had been at least for ten years,
(i) a member of Judicial Service; or
(ii) held an office under the Central Government or a State government requiring special knowledge of law after enrolment as an advocate; or
(iii) held an office in the department of Judge Advocate General or in the legal department of the armed forces.
Rule 4 makes a provision regarding giving an application and Rule 6 stipulates action on such application providing therein that
6. Preliminary action on application. (1) The competent authority shall examine every application received by him and, if he is satisfied that the applicant does not possess the qualifications 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 the application, shall reject it and inform the applicant accordingly.
4 W.P. NO. 13798/2008(2) If the competent authority does not reject the application under subrule (1),
(b) he may, if he thinks fit, ascertain from any Bar Council, Bar Association, Incorporated Law Society or other authority in the area where the applicant proposes to practise, the objections, if any, to the appointment of the applicant as notary, to be submitted within the time fixed for the purpose.
whereas Rule 7 provides that;
"7. Recommendation 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 subrule (2) of rule 6, makes 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 subrule (1) regarding the persons by whom the whole or any part of the costs of the application including the cost of hearing, if any, shall be borne.
(3) In making his recommendation under subrule (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 5 W.P. NO. 13798/2008 notaries practicing 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 be 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.
8. Rule 7 thus acts as a catalyst and the Rule makers have cast an obligation on the competent authority recommend an application for appointment to the post of Notary after to hold such inquiry as he thinks fit and after giving the applicant an opportunity of making his representation against objection if any. It is the contention of the learned Counsel for the respondents that no modalities have been stipulated under Rule 7 as would obligate the competent authority to resort for a positive act of selection. It is accordingly urged that the judgment rendered in Ashok Kumar Choudhary v. State of M.P. and others : 1998 (2) JLJ 318 and Suryakant Chandarkar v. State of M.P. and others (AIR 2000 MP 260) since does not consider this aspect are, therefore, not applicable in the context of present case. Regarding Ayaj Ahmed Khan and others v. State of MP and others (W.P. No. 7328/2008), it is contended that against the said judgment a writ appeal 146/2009 State of M.P. and others v. Ayaj Ahmed 6 W.P. NO. 13798/2008 Khan is pending and the operation of order in W.P. No. 7328/2008 is stayed in W.A. 147/2009.
9. As noted above in Rule 7 the appointment of a Notary cannot be without there being a recommendation by a competent authority the expression "recommendation" as mentioned in the Black's Law Dictionary: Fifth Edn., means Recommendation. In feudal law, a method of converting allodial land into feudal property. The owner of the allod surrendered it to the king or a lord, doing homage, and received it back as a benefice or feud, to hold to himself and such of his heirs as he had previously nominated to the superior.
10. Whereas to "to recommend" means "to advise or counsel". The literal meaning as given in the Concise Oxford Dictionary means "suggest as fit for employment". Thus, keeping in view the relevant rules, i.e., Rules 6 and 7 and the fact that the competent authority has to recommend the applicant to be appointed as Notary mere sending a panel comprising of two or more names ipso facto will not be a recommendation unless a deliberation is there suggesting the more meritorious. The contention, therefore, that drawing of panel is a sufficient compliance of the Rules has no substance and is hereby discarded.
11. The Supreme Court had an occasion to examine a similar issue in context to Art. 233 (2) of the Constitution of India while analyzing the expression recommendation in D. Panduranga Rao v. State of A.P. : (1975) 4 SCC 703, their Lordships were pleased to observe paragraph 8:
8. A candidate for direct recruitment from the Bar does not become eligible for appointment without the recommendation of the High Court.
He becomes eligible only on such recommendation under clause (2 ) of Article 233. The High Court in the judgment under appeal felt some difficulty in appreciating the meaning of the word "recommended ". But the literal meaning given in the Concise Oxford Dictionary is quite simple and apposite. It means "suggest as fit for employment". In 7 W.P. NO. 13798/2008 case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.
12. It was further observed in paragraph 9 "But surely it was very much wrong on the part of the High Court to forward the entire list of the candidates interviewed with the marks obtained by them and adding at the same time that the High Court had no further remarks to offer" and that "By no means 263 candidate interviewed, that all of them had a reasonable claim, or in other words, were fit to be appointed District Judges." When similar logic is applied in the case at hand it becomes clear that in the context of Rule 7 the competent authority has to recommend and not draw a panel or list of the candidates arranged in seriatim and leave it to the State Government to make selection. True it is that Rule 8 empowers the State Government to consider the report received from the competent authority prepared under Rule 7 and order either of the three eventuality, i.e.,
(a) allow the application for the whole of the area to which it relates, or
(b)whether, having regard to the commercial importance of the area in which the applicant proposes to practise and the number of existing notaries practicing 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 be extent of his practice, the applicant is fit to be appointed as a notary;
13. But, this does not absolve the recommending authority to discharge the obligation cast upon it under the Rules of 1956.
8 W.P. NO. 13798/200814. In the case of Ashok Kumar (supra) it was observed by his lordships in paragraph 11:
11. 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 Government.
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 suitably 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 for reaching effects. He must have sound knowledge of the laws referred in rule 7 and in respect of Notaries Act, Oaths Act, 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 has not sent recommendations.
15. Whereas in the case of Suryakant Chandrakar (supra) it was observed by his Lordships:
"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 9 W.P. NO. 13798/2008 and after giving the applicant an opportunity of making representations against the objections, if any. Rule 7 of the Rules which reads as follows:
"7. Recommendation 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 subrule (2) of rule 6, makes 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 subrule (1) regarding the persons by whom the whole or any part of the costs of the application including the cost of hearing, if any, shall be borne.
(3) In making his recommendation under subrule (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 practicing 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 10 W.P. NO. 13798/2008 practitioner also to be 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. G.C. Ghidiyal 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 11 W.P. NO. 13798/2008 along with the documents. Such a recommendation was obliged to be made by the competent authority under Rule 7 of the Rules. Nonrejection of the memorials under Rule 6 of the Rules and forwarding the same along with 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 vires and cannot be allowed to stand."
16. In view of the above analysis this Court is not impressed with the submission of the learned counsel for respondent that the judgment in Ashok Kumar (supra) and Suryakant Chandrakar (supra) are not in consonance with Rule 7 of the Rules.
17. Consequently, the petition is allowed and the order dated 14.8.2008 is hereby quashed. The respondent No.1 shall now hold a fresh selection in accordance with law as exposited above. No costs.
(SANJAY YADAV) JUDGE VIVEK TRIPATHI