Nandkishor S/O Gangaram ... vs Union Of India (Uoi), Ministry Of ...
2007 Latest Caselaw 676 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks consideration of his application at Annexure-A for being appointed as Notary under the provisions of the Notaries Act, 1952. He has also contended that the respondents must be directed to frame appropriate policy or guidelines for making selection of candidates for being appointed as a Notary.

2. The petitioner states that on 11/6/2003, he submitted an application for being appointed as a Notary for Malegaon area in which he is practicing as Advocate. The petitioner contends that said application is pending without any consideration even today. By inviting attention to the facts pleaded, the argument is, in the absence of any fixed policy or guidelines regulating such appointment the respondents are resorting to pick and choose. Persons who have applied subsequently have been appointed in Nagpur region. Our attention has also been invited to the provisions of the Notaries Act, 1952 and the Notaries Rules, 1956 thereunder to argue that there are no guidelines or norms either in the Act or in the Rules to control a very wide discretion available to the respondents in the matter.

3. In this background we have heard learned Advocate Shri Uday Dastane for petitioner and learned Advocate Shri R.S. Sundaram for respondents.

4. After pointing out the facts as mentioned above, learned Advocate Shri Dastane contends that the list of Notaries functioning as on 1st January of each year is also not published at any point of time by the respondents. He further argues that the fact of rejection of application of petitioner has been still not communicated to the petitioner though it has been stated in reply affidavit filed before this Court. He argues that the reason for rejection as given in reply affidavit is incorrect inasmuch as the petitioner being himself an advocate, has scrupulously filled in the application form which was complete in all respect and in prescribed proforma. He argues that the candidates are mostly selected because of their political affiliation or other influences and a common citizen like petitioner is never considered. He points out that in the Schedule appended to Notaries Rules, number of notaries to be appointed by the Central Government in the State of Maharashtra as also by the State Government in the State of Maharashtra are already specified. As the list of Notaries functioning as on 1st January each year is not published, the number of vacancies at any given point of time is never known to anybody and hence, one is not in a position to apply for being selected as a Notary. He contends that as a Notary, the selected person gets some privileges and exercises some authority which also fetches him to certain income. In other words, he states that the Government is distributing largess arbitrarily without following basic requirement of Article 14 in this respect. He contends that there has to be at least an advertisement informing all eligible candidates of available vacancies from sanctioned post and Notaries for the State of Maharashtra and claim in all such applications must be processed, considered and most eligible persons should be selected as Notary. In support of his contentions, for purpose of issuing guidelines and policy decision in this respect, he has relied upon the judgment of Hon'ble Apex Court in the case of Bangalore Medical Trust v. S. Muddappa and Ors. , in the case of TVL Sundaram Granites v. Imperial Granites Ltd. and Ors., ; and in the case of State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., . He further contends that absence of guidelines or policy decision in this respect will also enable any person to challenge selection of Notary, if ultimately petitioner is fortunate enough to be selected as Notary. According to him, therefore a larger issue which he has raised in this petition, which is of public interest, must be considered. He points out that similar challenge was raised before the Aurangabad Bench of this Court wherein after recording undertaking of the State of Maharashtra of preparing a proper policy decision, the writ petition has been disposed of. He contends that the petitioner will be satisfied even if such a statement is made by the respondents before this Court.

5. Advocate Shri Sundaram, on the other hand, contends that there are no facts pleaded in writ petition to enable this Court to issue any direction to respondents to take any policy decision or to frame any guideline. He contends that the challenge in writ petition is based only on mere conjunctures and a mere possibility of abuse of power by itself is not sufficient to invoke writ jurisdiction by the court. He invites attention to the scheme as is apparent from the Notaries Act, 1956 and Rules framed thereunder to argue that the Act and Rules contain sufficient guidelines in this respect and there cannot be any addition to the same. He, therefore, states that writ petition needs to be dismissed.

6. In relation to the application moved by the present petitioner, learned Advocate Shri Sundaram states that said application has been rejected as it was found to be moved not in proper proforma. He argues that the petitioner is free to move proper application and if such application is moved, the same will be considered in accordance with provisions of law. He further contends that rejection of his application ought to have been communicated to the petitioner in normal course and states that the reason for rejection is already disclosed in reply affidavit. He contends that said rejection has not been questioned in the present writ petition. He further states that the rulings on which reliance has been placed by the learned Counsel for petitioner does not consider the situation which is falling for consideration of this Court. He argues that as commercial potentiality of an area from which the applicant submits his application for being appointed as a Notary is relevant circumstance, there cannot be any further guideline or norm in this respect. He states that this commercial potentiality varies from time to time and is dependent upon several factors and hence in absence of any concrete illustration in writ petition about abuse of power by the competent authority in this respect, no presumption in this respect can be drawn.

7. Insofar as the first challenge about non consideration of his application by the petitioner is concerned, it is clear that the respondents have on oath stated that the application has been rejected and it was not in required proforma. A copy of that application is not produced by the respondents on record. A copy of that application produced by petition on record reveals that it is in required proforma. Advocate Shri Sundaram has contended that the application was also not fully filled in and was incomplete. The office copy on record does not show that the application submitted was in any way incomplete. Advocate Shri Dastane for the petitioner states that the reason for rejection sought to be introduced now is not pleaded at all in reply. In these circumstances, we are not in a position to accept the contentions of learned Counsel for respondents that the application was rejected for any valid reason. It is to be noted that Rule 6 of the Notaries Rules, 1956 require the respondents to communicate rejection of application to petitioner and it appears that there has been no such communication to petitioner. The petitioner, therefore, has rightly contended that his application is still under consideration. In these circumstance, we find that the respondents can consider afresh the application moved by the petitioner in accordance with law and communicate to him either its acceptance or rejection. Advocate Shri Sundaram has stated that it would be appropriate if the petitioner submits fresh application. The learned Counsel for petitioner states that the application has already been moved way back on 11/6/2003 and hence, very same application should be considered by the respondents. We, therefore find that there is no point in asking the petitioner to submit fresh application. The respondents to consider the application as moved by the petitioner in accordance with law.

8. The order of Division Bench of this Court at Aurangabad to which the petitioner has invited attention, disposed of the writ petition in motion hearing by recording the statement of Government Pleader that fresh proclamation for inviting application for the purpose of appointment of Notary in accordance with law will be published after framing administrative directions or guidelines for filling in such posts. The petitioner before Aurangabad Bench thereafter withdrew his writ petition in view of the statement made. It is apparent that the State Government was only respondent in that writ petition and no proposition of law has been laid down while disposing of the said writ petition on 05/9/2001 by the Division Bench of this Court at Aurangabad.

9. The contention of the petitioner that there has to be a public advertisement inviting applications for filling in the post of Notary appears to be contrary to the scheme of Notaries Act, 1952. The contention that the State Government or Central Government is distributing largess is also difficult to accept in view of the responsible nature of duties which such notary is required to perform. In fact it is an honour which is conferred and entire administration of the State as also citizens repose their faith in such person. It is, therefore, not proper to view said appointment as some employment or source of income.

10. The Notaries Act, 1952 has been framed to regulate profession of Notaries. It further states that till then Master of Faculties in England used to appoint Notary Public in India for performing all recognized notarial functions and the Parliament thought it appropriate that the persons wishing to function as Notary should derive their authority from Institution in United Kingdom. The Act was, therefore, brought on statute book. Section 3 of the Act gives power of Central Government and the State Government to appoint Notaries, and any legal practitioner can be appointed on that post. The Notary appointed has to register his name in the register maintained by the competent authority under Section 5. Section 6 casts obligation on the Central Government or State Government to publish in official Gazette the list of Notaries appointed by that Government and in practice at the beginning of the year in the month of January every year. Section 8 deals with the functions of Notaries. Section 15 permits Central Government to make Rules to carry out purposes of the Act. The Notaries Rules, 1956 are accordingly framed. Rule 3 prescribes qualification for appointment as Notary and Rule 4 states that a person can make application for appointment as a Notary to such authority referred to as competent authority in the form of a memorial. Rule 6 prescribes action to be taken on application. The competent authority has to examine every application and if he finds that the applicant does not possess necessary qualification or any earlier application of same person was rejected within a period of six months before his current application, he has to reject it and inform the rejection to the applicant. If the application is not rejected, such authority has to ascertain from Bar Council, Bar Association and any other authority in area where the applicant proposes to practice, the objections, if any, to the appointment of applicant as a Notary. Rule 7 requires competent authority to hold such inquiry as he thinks fit and after giving applicant an opportunity of making his representations against the objections received, it has to submit its report to the concerned Government with its recommendations. While making these recommendations, the competent authority has to consider various factors which are stipulated in Rule 7, Sub-rule 13 3 and those factors are whether the applicant resides in the area in which he proposes to practice as Notary, whether having regard to commercial importance of area in which he proposes to practice and number of existing Notaries practicing in that area, it is necessary to appoint any additional Notary, the expertise, experience of applicant for appointment as a Notary, the extent of his legal practice as legal practitioner etc. If the applicant belongs to a firm of legal practitioners, the competent authority has to find out whether number of existing Notaries in that firm is not sufficient and appointment of additional Notary is, therefore, necessary. If more than one application in respect of very same area are pending, the competent authority has to find out which of the applicants is more suitable. Rule8 which deals with appointment of Notary shows that the application can be allowed and person can be appointed as a Notary in respect of whole area mentioned in the application or part of it. Rule 8-A permits the Notary to seek extension of area of his practice. Rule 13 deals with procedure to be followed in an inquiry into the allegations of professional or 14 other misconduct of a notary. The Schedule, which prescribes the number of notaries to be appointed by the Central Government or State Government, appear at the end of Rules, is because of powers given to those Governments by Rule 8 Sub-rule (4-A).

11. The number of notaries to be appointed by the Central Government for State of Maharashtra has been specified as 875 while by the State Government, the number specified is 1313. We have specifically asked learned Counsel for petitioner whether he is raising any challenge to this determination of numbers. The learned Counsel has frankly stated that this is done by the Legislature and he is not objecting to it. In the absence of any challenge to this initial determination or to a revision therein from time to time, we find it difficult to appreciate the arguments of petitioner that the competent authority or respondent have to allocate posts of notaries qua each district or qua each area/tahsil , There is no such requirement either in Notaries Act or in Rules framed thereunder. The provisions of Rule 7 of Notaries Rules, 15 1956 prescribe factors to be looked into by the competent authority while recommending appointment of a candidate as a Notary and one of the considerations is commercial importance of an area in which the applicants proposes to practice. The significance of this factor is also highlighted by the fact that present petitioner has along with his application dated 11/6/2003 submitted names of 10 industrial establishments to point out the viability of his placement and practice at Malegaon. It is to be noted that the area for which Notary is appointed is not fixed statutorily either by the Act or by Rules. The area for which Notary is appointed is the area in which he wishes to practice. It is, therefore, clear that the place of practice has to be the local area for which a notary can be appointed and therefore, commercial importance of said local area has been retained as relevant factor under Rule 7 Sub-rule 3(b). The competent authority is required to consider whether existing Notaries practicing in local area are sufficient or there is a need to appoint additional Notary. This action shows that the competent authority, therefore, has to apply its mind to the commercial 16 importance and the work available for Notary in that area. Advocate Shri Dastane has argued that commercial importance of any area is not a static factor and there are no guidelines prescribed for evaluating said commercial importance or change therein. It is apparent that Notaries are being appointed since even prior to independence and under the present enactments since 1952. The functions of Notary are given in Section 8. The competent authority, therefore while arriving at its opinion under Section 7(3)(b) has to find out whether the said local area can generate work warranting an independent Notary for it. As commercial importance and generation of such work is bound to vary from time to time, the Rule also obliges the competent authority to find out whether any additional Notary needs to be appointed for said local area or not. We, therefore, find that the contentions of petitioner that there are no guidelines or policies in this respect, is misconceived.

12. The other argument is about distribution of posts of notaries all over the State of Maharashtra. Perusal of Schedule 17 appended to the Notaries Rules, shows that the posts are sanctioned for entire Maharashtra State and there is no allocation either division-wise or district-wise or block/tahsil-wise. We again find that as functions of Notary depend upon the work to be generated by any local area which in turn depends upon the commercial importance and commercial development of such area, there cannot be any such quota for any district or tahsil or block. The Act has deliberately not made any such provision and the Rules are also silent about it. As Notary is to be provided at a place where he is needed, the Parliament has thought it fit not to make any such allotment. We do not find anything wrong in not allotting any specified number of Notaries to any particular area. The argument is, therefore, without any substance.

13. It is also to be noticed that in absence of challenge to initial determination of posts of Notaries as disclosed in the Schedule appended to the Notaries Rules, above argument cannot be entertained. On what basis such requirement was worked out 18 and why respondents as also State Government have been given power separately to appoint notaries is also not disclosed anywhere in the petition. We, therefore, find petition lacking material necessary to examine any such challenge at required depth. We, therefore, reject these arguments of the petitioner.

14. As there is no allotment either division-wise or district- wise or block/tahsil-wise and commercial importance or progress of an area has been treated as relevant factor, the Parliament has not made any provision for publication of an advertisement inviting applications for filling in the posts of Notary. The process is always on and aspirant, therefore, can at any point of time move appropriate application and seek appointment. It is to be noted that one who is diligent can, therefore, apply pointing out the commercial importance of an area and the need of Notary therein. It is clear that as Government is not distributing any largess in the matter and work assigned is of trust and confidence, the Parliament has provided for a discrete inquiry by competent authority. The 19 provisions of Rule 6 and 7 mentioned above also contemplate inquiry about the applicant from Bar Council, Bar Association, Incorporated Law Society or any other authority in the area where the applicant proposes to practice and it also contemplates giving of an opportunity to the applicant against such objections, if any. As already observed above, as we find that the appointment as a Notary is not an employment or an office of profit, the contentions in this respect also needs to be rejected. The scheme provided by the Parliament in the Act or Rules thereunder, has not been challenged by the petitioner and he is only seeking laying down of policies or guidelines for implementation of Act or Rules. In view of discussion above, we find the said demand and argument of petitioner totally misconceived.

15. The petitioner has relied upon the judgment of Hon'ble Apex Court in the case of in the case of TVL Sundaram Granites v. Imperial Granites Ltd. and Ors., to contend that while grant of largess is at the 20 discretion of the State Government, its action should be open, fair, honest and completely aboveboard. We find that there cannot be any dispute with this proposition and we have already held above that the Government or Union of India is not conferring any largess by appointing a person as a Notary. Further, we also find that the Notaries Act, 1952 and the Notaries Rules, 1956 framed thereunder contain enough safeguards against any such arbitrary action. The judgment in the case of Bangalore Medical Trust v. S. Muddappa and Ors. is again pressed into service for same purposes. The discussion in said judgment shows that in a development scheme a public park was converted into private nursing home and said action was challenged. While holding that such conversion was not permissible, it has been observed that the purpose for which Bangalore Development Act, 1976 was enacted and to achieve the purpose of development, the development scheme framed by the Improvement Trust was adopted by the Development Authority. It was noticed that any change in development scheme should be 21 made only by following procedure prescribed in Sub-section 4 of Section 19 and as the exercise of power in conversion of land of public park into a land for private nursing home was found to be vitiated, the exercise of power was found to be contrary to the purpose for which power was conferred by the Statute. In para 47, the Hon'ble Apex Court also observed that the Legislature has taken care to control exercise of this power by linking it with improvement in the scheme. It is also observed that in modern State activity discretion with executive and administrative agency is must for efficient and smooth functioning. It is also noted by the Hon'ble Apex Court that extent of discretion or constraints on its exercise depend on the rules and regulations under which it is exercised. We again find that the judgment in no way assist the case of present petitioner. On the contrary from our observations above, it is clear that the Parliament has linked appointment of Notary with commercial importance or improvement of an area in which such Notary wishes to function. The judgment in the case of State of U.P. and Ors. v. U.P. State Law Officers Association and 22 Ors. , particularly para 6 again does not support the petitioner. It is the case in which Law Officers engaged by the State Government of Uttar Pradesh were removed and these Law Officers approached High Court by writ petition contending that their removal was against the principals of natural justice. The High Court accepted that contention. It is in this background that the Hon'ble Apex court has noted that the State Government was under no obligation to consult even its Advocate General muchless the Chief Justice or any other Judge of High Court. It is also noticed that method of appointment was not calculated to ensure that meritorious alone will always be appointed or appointments made would not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations or arbitrary. We find again that these observations are not applicable in the facts of present case. The factors to be looked into are stipulated in Rule 7 Sub-rule 3 and procedure to be valid when more than one application is received, is also stipulated therein. 23

16. We find that there are two important controls or check points. The first is in Section 6 which requires the Central Government and State Government to publish in its official Gazette a list of Notaries appointed and in practice at the beginning of the year. Such list is to be published every year in January and Rule 17 of Notaries Rules further prescribes that the list has to contain residential and professional address of Notary, his qualifications and area in which he is authorised to practice. As the list is required to be published at the commencement of the year i.e. in January every year, after perusal of said list any aspirant can get fair idea of work load available and whether it is available in the area in which he wishes to practice or not. He can also apply immediately with necessary particulars. If his application is rejected, Rule 6(1) as also Rule 8(1)(c) contemplate its communication to the applicant. It is obvious that in it there has to be a mention of reason for which the application has been rejected. In fact Rule 8(2) requires appropriate Government to inform applicant of every order passed by it under 24 Sub-rule (1) of Rule 8. The said order can also be an order imposing cost of processing the application of such candidate. Sub-rule(3) permits such applicant within 60 days to apply to appropriate Government for review and if such application is made, the Government is authorised to make such further inquiry as it thinks fit and then pass appropriate orders. It is, therefore, clear that if reasons communicated are arbitrary or perverse, the Statute provides for sufficient safeguards. In these circumstances, we find even the challenge in respect of absence of policy or guidelines as raised in the petition to be misconceived. It is settled law that mere possibility of abuse of power is not sufficient to induce the court to hold that there is a need of framing guidelines or laying down any policy. The petitioner has not given any concrete example of such abuse of power or any political influence playing role in the process of selection.

17. In these circumstances, we partly allow the petition by directing the respondents to consider the application submitted by 25 the present petitioner on 11/6/2003 for his appointment as Notary in accordance with law afresh as early as possible and in any case within a period of four months from the date of communication of this order to it. We also permit the petitioner to supply a copy of his application again to respondents, if such copy is required by them. Petitioner to supply such copy within a period of two weeks by R.P.A.D. to both the respondents. Rest of the challenge in the writ petition is dismissed in the facts and circumstances of the case.

18. Rule made absolute accordingly. However, in the circumstances of the case, there shall be no order as to costs.