Central Information Commission
Prashant Kakade vs Ministry Of Law & Justice on 13 September, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या /Second Appeal Nos.- CIC/MOLAJ/A/2017/128070,
CIC/DOLAF/A/2017/604170/CASEC &
CIC/DOLAF/A/2017/603038
Adjunct Order Dated 10.09.2018
Hearing:
1. The instant matter is listed today for further hearing.
2. The appellant participated in the hearing through video conferencing.
Ms. Poonam Suri (Dy. Legal Adviser) represented the respondent in the
hearing in person. The written submissions are taken on record. They agreed to hearing of these cases together, as the subject matter is similar in nature.
3. The appellant stated that the 'notary register' is a public record and under the Notaries Rules, 1956, the Department of Legal Affairs is empowered to call for the 'notary register' and the concerned notary is legally obliged to produce the same. Further, he stated that Mr. Gregory D'Souza cannot go scot free by merely saying that the 'notary register' (containing the entry of Power of Attorney between Mrs. Farida Zaveri and Mr. Shabir Ali which was attested by Mr. Gregory D'Souza on 09.01.2002.) relates to a record that is about 15 years old and is presently untraceable. In addition, he stated that the 'notary register' should be made available on the website of the Department of Legal Affairs.
4. The respondent stated that Mr. Gregory D'Souza had informed them vide his letter dated 14-10-2016 that the concerned notary register is not traceable. However, Mr. D'Souza is ready and willing to provide his specimen signature to ascertain the authenticity of the Power of Attorney between Mrs. Farida Zaveri and Mr. Shabir Ali, which was supposedly attested by him on 09.01.2002. Further, she stated that with regard to making 'notary registers' available online on their website, a decision needs to be taken at the higher level in the Department of Legal Affairs.
1Discussion/ observation:
5. Rule 11(9) of the Notaries Rules, 1956 talks about the maintenance of 'notary register' in following terms:-
"11. Transaction of business by a notary.- (9) Every notary shall grant a receipt for the fees and charge realised by him and maintain a register showing all the fees and charges realised."
6. The notary register which is a 'public record' should be accessible to general public. A person approaching a notary for authentication of his documents expects not only to exercise reasonable care in notarizing the signature on a document, but also to be able to show evidence, often years after the date of the act, that the notarization was performed in accordance with proper notarial procedures. It is in the larger public interest that every notarial act should be maintained properly in a notary register and to archive it securely and indefinitely, or at least for the retention period as prescribed, if any. But this aspect has not been touched by the Department of Legal Affairs which is evident from a common pattern manifested in different decisions of the CIC. During the hearing, the CPIO has herself admitted that the records are not being catalogued/indexed properly. Moreover, the notary records are being kept in their godown(s) in bundles. In this scenario, it is very difficult to locate the documents which are required from time to time. This state of record keeping is very perilous as far as implementation of the RTI Act is concerned. It is to be noted that the essence of transparency lies in proper maintenance of records. This cannot be compromised at the altar of lack of logistics. Only properly maintained records ensure the accountability of the public authority for every stakeholder of the society. Sometimes, the plea has been taken before the CIC that the records are missing, therefore, this information cannot be provided. In such case, it is duty of the public authority to reconstruct the missing records. Digitization of records can act as a catalyst in free flow of information. The public authority should improve their system of record keeping. The Hon'ble High Court is already seized of the matter relating to digitization of notary records and catena of decisions of the CIC is also in 2 place on this matter. Therefore, the public authority should intimate the updated factual position in the matter to the CIC and take expeditious steps to comply with the orders of the Hon'ble High Court.
7. This Commission observed that the respondent should seek an appropriate explanation from the notary concerned with regard to missing public record/information i.e. 'notary register'. Steps should be taken to reconstruct the missing records. Further, the CPIO should also inform the factual position to the appellant, within 15 days from the date of receipt of this order.
8. This Commission had directed the public authority in its order dated 12.05.2017 in appeal no. CIC/SS/A/2013/001032 to switch to digital filing of notary records with following directions:-
"12. The Hon'ble Delhi High Court is already seized of the matter pertaining to maintenance of records relating to the notaries wherein the Union of India was asked for switching to electronic/digital mode. The Commission observed that the respondent should expedite action as per the Hon'ble High Court orders. The Commission further observed that digital filing of records by notaries can be one possible solution for retrieving the record. The new records should be created by the notaries through a Ministry's online portal. As regards the old records, it may be scanned and uploaded on the web-portal so that it can be easily accessed to and retained for long periods. This should be available just at the click of a button. The Secretary, Deptt. of Legal Affairs is advised to expedite action on the orders of the Hon'ble High Court for bringing about the change in record keeping and to move towards digitization of their records pertaining to the notaries. This will facilitate replies to RTI applications and would 3 also be in consonance with the section 4(1)(a) of the RTI Act viz. "Section- 4(1) (a): Every Public Authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the Right to Information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to the availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated."
9. Further, in the earlier order of the Commission vide CIC/SA/A/2015/000081 dated 12.06.2015, it was observed as follows:-
"6. In one of the complaint this Commission adjudicated, it was complained that the Notary Public referred in his RTI application expired in 2006, but still they are finding some documents attested by that Notary with back date prior to 2006 with different signatures. The appellant wanted to know the specimen signature of that Notary Advocate to compare and challenge the genuineness of documents bearing different signatures. It was not supplied by the Public Authority. The appellant further submitted that in the absence of specimen signature of that Notary, it is not possible to make out real and authenticated certificates. He sought to know the date of the renewal of his Notary license along with specimen signature and other related details. He also wanted to have a copy of his original application.
7. The Commission notices that there is an increased flow of complaints against notaries all 4 over the country. As told by the respondent officer, there are at least 5-10 complaints per month regularly received by him against the notaries. The Department is not in a position to dispose of the complaints against notaries promptly. The Commission was told by the Public Authority that there are about 50 complaints against the notaries, which are pending in the department now and the same could not decided because of shortage of staff.
8. The Commission also finds that some of the complaints against some notaries are very serious like they are hand-in-glove with land mafia and exorbitantly charging for attestation and operating through proxy, not personally verifying the genuineness of documents and statements they are attesting etc. Any delay in the disposal of the complaints might result in authentication of undeserving documents and statements by the Notaries which might lead to several scams and serious injustice to many persons.
...
11.The Commission finds that there is no mechanism in public authority to maintain a parallel register/record about certifications and attestations by notary public, because of which they have to depend totally on the register maintained by the notary only...."
10. With regard to maintenance of records relating to the notaries, the Hon'ble Delhi High Court in order dated 24.09.2015 and 18.11.2015 in W.P.(C) 9207/2015 & CM No.21025/2015 (for stay) in Union of India Versus S.R. Gangurde respectively has observed that:-
5Order dated 24.09.2015-
"5. Even if that be so, I am of the view that the Government of India (GOI) should not be so reluctant to even consider a change. Wisdom should not be refused, from whichsoever source it comes. The Notaries Act, 1952 is of more than 60 years vintage and it is unfortunate that the government is satisfied with maintaining a status quo rather than to evolve with the times and the changing need of governance. I feel that there is no need for the Government of India to be aggrieved from a direction, merely "to consider".
6. Rather, it is felt by me also, that the subject of notarization and attestations by Oath Commissioner is such in which advancements in information technology can certainly be made use of. It appears that there should be at least a consideration, whether a record of such notarization and attestations can be maintained electronically, available to whosoever may want to verify the same. There does not appear to be any difficulty in Notaries and the Oath Commissioners, who are in any case required to maintain a record thereof with themselves, maintaining the same electronically, on a website, to be available not only to Notary/Oath Commissioner concerned but also to whosoever may desire to inspect the same."
Order dated 18.11.2015-
"2. The learned ASG states that Notary Public are appointed, both by the Union of India (UOI) as well as State Governments; the Oath Commissioners are appointed by the High Courts. It is thus stated that the UOI is concerned only with the Notary Public appointed by the UOI. The learned ASG further states that the Rules presently in force do not provide for 6 maintenance of records by Notary Public in digital form and without which the said records, even it were to be made available to the public at the click of a button, cannot be so made available. He further states that the amendment of the Rules, to provide for the records to be maintained in digital form by Notary Public and Oath Commissioners within the domain of UOI, shall be advised to the Government and shall be considered.
3. As noted in the earlier order dated 24th September, 2015, the Central Information Commission (CIC) also has merely directed the petitioner UOI to consider putting in place the aforesaid.
4. The learned ASG however states that there is some ambiguity because of paras 9 and 12 of the impugned order and because of the direction to the petitioner UOI to report back within a month.
5. It is clarified that the order of the CIC is only an order for 'consideration'.
6. The time for UOI to so consider, as directed by this Court, is fixed till 30th June, 2016. A report in this regard be filed in this Court and upon receipt whereof, the matter be put up before the Court for consideration thereof.
7. Needless to state that the directions in this petition substitute the directions issued in the impugned order..."
Decision:
11. The respondent is directed to take action as per para 6 and 7 above of this order.
12. The public authority is directed to depute a nodal officer to supervise the steps taken by them for implementation of the Hon'ble High Court and this Commission's order(s) and inform the factual position to this 7 Commission, within 90 days from the date of receipt of this order. The nodal officer should submit a report indicating the steps taken by them in every State/Union Territory with regard to digitization process of notary records.
He should inform what actions are being taken for preservation/maintenance of these records. In the meantime, the public authority is directed to initiate the steps for keeping the records of notaries all across the country, duly catalogued and indexed as per provisions of Section 4(1)(a) of the RTI Act and this information should be put on their website. The public authority should also ensure that the steps are taken to preserve the records in a secured manner so that at a latter stage these can be retrieved as and when required. Further, they are directed to intimate to this Commission, the current status of keeping notary records, within 30 days from the date of receipt of this order.
13. The sought for information is expected to be in the records of the respondent. Alternately, they are competent to call for records from the Notary concerned. This RTI application brings up the matter of proper upkeep and availability of records, which is a prescribed mandate under Section 4(1) (a) and (b) of the RTI Act. Further, the public authority is directed to implement the order(s) of this Commission in letter and spirit as the directions are issued as per the powers vested in the CIC under Section 19(8)(a) sub-sections (iii) and (iv) of the RTI Act.
14. The Secretary, Department of Legal Affairs is advised to expedite the digitization process of notary records.
These appeals are disposed of. Copy of the order be given to the parties free of cost.
Radha Krishna Mathur (राधा कृ ण माथुर) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) S.C. Sharma Dy. Registrar एस. सी. शमा , उप-पंजीयक एस. सी.
(011-26186535) 8 Copy To:-
The Secretary, Department of Legal Affairs, Shastri Bhawan,New Delhi-110001.9