Bombay High Court
Surekhaben Chhaniyabhai Varli vs Union Of India And Ors on 1 April, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:15443-DB
10-WP-6292-2024 (C).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6292 OF 2024
Surekhaben Chhaniyabhai Varli ...Petitioner
Versus
1. Union Of India
2. The Administrator, U. T. Dadra and Nagar
Haveli, Daman and Diu.
3. The Collector, U.T. Dadra and Nagar Haveli,
4. Deputy Collector (R.D.C.), U.T. Dadra and
Nagar Haveli
5. Law Secretary, U.T. Dadra and Nagar Haveli
6. Hiteshkumar Kismatbai Bhandari
7. Pankajkumar Naginbhai Bhandari
8. Ami Jayvatlal Shah
9. Gordhankumar Ganeshbhai Purohit
10. Nipuna Mahendrasinh Rathod
11. Sunny Bhikhubhai Bhimra
12. Minaben Baberbhai Patel ...Respondents
__________
Mr. Pramod N. Joshi a/w Ms. Rukhmini Khairnar, for the Petitioner.
Mr. Hiten Venegaokar a/w Mr. Harsh Dedhia, for the Respondents.
__________
CORAM : G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
DATE : 01 APRIL 2025
Oral Judgment: (Per G. S. Kulkarni, J.)
1. Rule made returnable forthwith. Respondent waives service. By consent
of the parties, heard finally.
2. A short issue which arises for consideration in this proceedings under
Article 226 of the Constitution is whether respondent no. 3- The Collector,
Union Territory of Dadra and Nagar Haveli was correct in not passing a
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reasoned order on the petitioner's application for appointment as a notary
public.
3. The facts lie in a narrow compass:-
On 29 January 2025, respondent no. 3 issued an advertisement inviting
applications for appointment of notary for the Union Territory of Dadra and
Nagar Haveli. In pursuance of such advertisement, petitioner made an
application dated 3 February 2024 which is stated to be in the prescribed form.
Such application was accepted and the petitioner was called for interview by the
Interview Board on 21 February 2024.
4. It is the petitioner's case that when seven notaries were selected whose
appointments were notified vide notification dated 12 March 2024, the
petitioner presumed that the petitioner's application had either remained to be
decided or was rejected. It is the petitioner's case that as no reasons were
communicated to the petitioner. It is contended that considering the provisions
of law it could not be that the petitioner's application suffered a rejection. It is
also the petitioner's case that there cannot be an automatic rejection of the
petitioner's application as any rejection of the application would require reasons
to be furnished. This more particularly considering the Notaries Rules, 1956. In
supporting such contentions, Mr. Joshi, learned counsel for the petitioner has
placed reliance on the decision of the Division Bench of this Court in the
Nandkishor S/o Gangaram Dhudkekar vs. Union of India 1.
5. On the other hand Mr. Venegaokar, learned counsel for the respondent
has opposed the petition supporting the action of the respondents. It is his
1. (2008) 1 Mah LJ 349
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contention that the law would not require any reasons to be furnished, as already
the selection has been made and seven candidates have been selected/notified.
Accordingly, he has prayed for rejection of the petition.
Analysis
6. On the aforesaid premise, we have heard learned counsel for the parties.
At the outset we find that appointment of notaries is governed by the provisions
of the Notaries Act, 1952 (for short "the Act"). Section 3 of the Act provides for
power to appoint notaries is conferred with the Central Government as also the
State Government. Section 3 read thus: -
"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."
7. By virtue of the provisions of section 15 of the Notaries Act, the Central
Government has framed the Notaries Rules 1956. Under such Rules, Rule 4
deals with application for appointment as a notary, Rule 6 provides for
preliminary action on such application to be taken, Rule 7 provides for
recommendation of the competent authority, Rule 7A provides for constitution
of the Interview Board, Rule 8 provides for appointment of notary. Such
procedure as contemplated under these rules is required to be followed for
making the appointment of a notary. The relevant rules are required to be noted
which read thus :-
"4. Application for appointment as a notary.--(1) A person may
make an application for appointment as a notary (hereinafter called
"the applicant") online in Form I or Form il as applicable, addressed
to such officer or authority (hereinafter referred to as the "competent
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authority") of the appropriate Government as that Government may,
by notification in the Official Gazette, designate in this behalf.
(2) The memorial shall be drawn by a person referred to in clause (a)
of rule 3 in accordance with Form I and by a person referred to in
clauses (b) and (c) of the said rule in accordance with Form II.
6. Preliminary action on application.-(1) The competent authority
shall examine every application received by him and if he is satisfied
that the application is not complete in all respects or 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 summarily and inform the applicant accordingly.
(2) If the competent authority does not reject the application under
sub-rule (1)-(a) ** *
(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.
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
sub-rule (2) of rule 6, make a report to the appropriate Government
recommending that the applicant may be allowed to appear before
the Interview Board.
(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 the 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 the case of a legal
practitioner also to the extent of his practise, 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 firm; and proper and necessary to appoint any additional
notary from that
(e) where applications from other applicants in respect of the area are
pending, whether the applicant is more suitable than such other
applicants:
Provided that in respect of categories (b) and (c), if the memorial in
Form Il is found to be in order, the competent authority may issue
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certificate of practice as Notary directly by exempting appearance
before the Interview Board.
7A. Constitution of the Interview Board.-(1) If the appropriate
Government allows that the applicant may be asked to appear before
the Interview Board, the competent authority, shall inform the
applicant to appear before the Interview Board, on the date, time and
place fixed, to judge the competency of the applicant for being
appointed as a Notary. The Interview Board shall submit its
recommendations to the appropriate Government.
(2) For the said purpose, one or more Interview Boards shall be
constituted by the appropriate Government from amongst its offices
dealing with legal matters and the Chairperson of every Interview
Board shall be an officer not below the rank of Joint Secretary or Law
Officer of that Government '"Provided that the appropriate
Government may dispense with the condition of holding of
interviews for which reasons are to be recorded in writing.
8. Appointment of a notary.- (1) On receipt of the recommendations
of the Interview Board the appropriate Government shall consider
the recommendation and shall--
(a) allow the application in respect of the whole of the area to which it
relates; or
(b) allow the application in respect of any part of the area to which it
relates; or
(c) reject the application,
and shall also make such orders as the government thinks fit
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
(2) An applicant shall be informed of every order passed by the
appropriate Government under sub-rule (1):
(3) An applicant whose application has been rejected or allowed in
respect of only a part of the area to which it relates or against whom
an order as to costs has been made under sub-rule (1) may, within
sixty days of the date of the order apply to the appropriate
Government for reviewing the order and that Government may, after
making such further inquiry as it thinks fit pass such order as it
considers necessary.
(4) Where the application is allowed, the appropriate Government
shall appoint the applicant as a notary and direct his name to be
entered in the Register of Notaries maintained by that Government
under section 4 of the Act and issue to him a certificate on payment
of prescribed fees authorizing him to practise in the area to which the
application relates or in such part thereof as the appropriate
Government may specify in the certificate, as a notary for a period of
five years from the date on which the certificate is issued to him.
4A) The appropriate Government may on and after the ninth day of
May, 2001, appoint notaries in a State or Union Territory, as the case
may be, not exceeding the number of notaries specified in the
Schedule:
Provided that the number of notaries whose certificate of practice has
been renewed under sub-section (2) of section 5 of the Act, shall be
included in the total number of notaries appointed for the purpose of
counting the total number of notaries specified in the Schedule:
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Provided further that if in a State or Union Territory the number of
notaries appointed before the ninth day of May, 2001 exceeds the
number of notaries specified in the Schedule, such notaries shall
continue to be so appointed in that State or Union territory, as the
case may be.
Provided also that in case, request for enhancement of quota is
received from Union Territory or the State concerned, the same shall
be considered as per the following criteria-
(a) if there is an increase in the population of the concerned State or
the Union Territory;
(b) if there is increase in the number of districts or tehsil or talka of
the concerned State or Union Territory.]
'(5) The Register of Notaries shall be in Form II-A and the certificate
of practice shall be in Form II-B."
(emphasis supplied)
8. From the perusal of the aforesaid provisions, the statutory scheme is
quite clear that an application made by a candidate for appointment as a notary
would be required to be taken to its logical conclusion namely by deciding such
application. If the application is not to be entertained or is to be rejected, the
concerned Government is required to make such orders as it thinks fit, as
specifically provided under Rule 8 (1). Rule 8(2) provides that the applicant
shall be informed of every order passed by the appropriate Government under
sub-rule (1). This presupposes that a mere notification of selection of certain
candidates in the selection / appointment process cannot be an order deciding
an application of a particular applicant. What is further discerned from sub-rule
(3) of Rule 8 is that any applicant whose application has been rejected or is
allowed, in respect of only a part of the area to which it relates or against whom
an order as to cost has been made under sub-rule (1) may, within sixty days of
the order apply to the appropriate Government for reviewing the order, and
further that the Government may, after making such further inquiry as it thinks
fit pass appropriate orders as it considers necessary.
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9. In our opinion, the provisions of sub rule-(1), (2) and (3) of Rule 8 are
required to be read in conjunction as they form an integral part of the statutory
scheme in regard to the appointment of notary. Necessarily such statutory
scheme encompasses that individually an application is required to be decided
and any order being passed on the application for appointment as a notary is
required to be communicated to the applicant. It is only when the applicant is
aware of the reasons underlying the decision on his application, the applicant
can take recourse to the provisions of sub-rule (3) of Rule 8, which is a remedy
to approach the appropriate Government in a review application. Any other
reading of the scheme of Rule 8 would not further the object and intention of
such statutory scheme which is clearly discerned from the plain reading of such
Rules.
10. It is a well settled position in law that the administrative authorities in
taking a decision on matters, in regard to which authority is conferred on them
in law, are under a mandatory obligation to record reasons in the orders they
would pass. In Shrilekha Vidyarthi vs. State of Uttar Pradesh 2, the Supreme
Court has held that every State action may be informed by reason, which follows
that an act uninformed by reason is arbitrary. In paragraph 36 of the report, the
Supreme Court observed thus:
"36. ..... Every such action may be informed by reason and if follows that an
act un-informed by reason is arbitrary, the rule of law contemplates
governance by law and not by humour, whim or caprice of the men to
whom the governance is entrusted for the time being. It is the trite law that
"be you ever so high, the laws are above you." This is what a man in power
must remember always."
2 (1991) 1 SCC 212
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11. In S. N. Mukherjee vs. Union of India 3, the Supreme Court held that the
object underlying the rules of principles of natural justice is to prevent
miscarriage of justice and to secure fair play in action. It was held that except in
cases where the requirement to record reasons is expressly or by necessary
implication is dispensed with, the authority must record reasons for its decision.
12. In Sant Lal Gupta & Ors. v. Modern Co-operative Group Housing
Society Ltd. & Ors.4, the Supreme Court observed that reasons are the heartbeat
of every conclusion, as it introduces clarity in an order and without which the
order becomes lifeless. It was observed that the reasons substitute subjectivity
with objectivity. The absence of reasons renders an order indefensible
/unsustainable particularly when the order is subject to further challenge before
a higher forum. The Supreme Court held that recording of reasons is a principle
of natural justice which ensures transparency and fairness in the decision
making. A person who is adversely affected must know why his application has
been rejected. These observations are aptly applicable in the present facts.
13. In National Highways Authority of India & Ors. vs. Madhukar Kumar &
Ors.5 on the duty to record reasons, the following principles were reiterated by
the Supreme Court:
"71. The advantages, undoubtedly, of introducing a reasons driven regime,
are as follows. Persons, who may have a right or an interest, would know,
what are the reasons which impelled the administrator to take a particular
decision. Judicial review, in India, which encompasses the wide contours of
public interest litigation as well, would receive immeasurable assistance, if
the reasons for particular decisions, are articulated to the extent possible.
The giving of reasons also has a disciplining effect on the administrator.
This is for the reason that the reasons would capture the thought process,
which culminated in the decision and it would help the administrator steer
3 (1990) 4 SCC 594
4 (2010) 13 SCC 336
5 (2022) 14 SCC 661
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clear of the vices of illegality, irrationality and also disproportionality.
Reasons could help establish application of mind. Conversely, the absence
of reasons may unerringly point to non-application of mind. The duty to act
fairly, may require reasons to be recorded but the said duty, though there is a
general duty on all State players to act fairly, may have its underpinnings,
ultimately in legal rights.
72. .......Even if, there is no duty to record reasons or support an order with
reasons, there cannot be any doubt that, for every decision, there would be
and there must be, a reason."
14. Mr. Joshi. would be correct in placing reliance on the decision of the
Division Bench of this Court Nandkishor S/o Gangaram Dhudkekar (supra)
wherein the Division Bench examining Rule 6 as also Rule 8 of the Notaries
Rules has clearly observed that if the application of the petitioner therein was to
be rejected, it would contemplate communication of the decision to the
applicant. It was observed that there has be a mention of the reasons on which
the application has been rejected, as mandated by sub-rule (2) of Rule 8. The
relevant observations are required to be noted which read thus: -
" 16. ........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 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."
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15. Thus, applying the aforesaid provisions of the Noteries Act and the
Notaries Rules, as also the well settled principles of law as enunciated in the
decisions as discussed hereinbefore, to the facts in hand, we find that the
petitioner had made an application for appointing as Notary Public. He was
interviewed and despite the same, no specific order was passed informing the
petitioner of the decision on the petitioner's application. As no order was passed
on the petitioner's application to reject the same or partly grant the same, there
was no question of the petitioner invoking the provisions of sub-rule (3) of Rule
8. The inaction of respondent no.3 in not passing an order on the petitioner's
application, cannot be recognized to be any lawful exercise of its authority under
the Notaries Rules, 1956 as discussed hereinabove. It is therefore incumbent on
the respondent to consider and dispose of the petitioner's application by a
reasoned order.
16. In the light of the aforesaid discussion, in our opinion, the petition would
be required to be disposed of in terms of the following order :-
ORDER
(I) The Interview Board is directed to grant a fresh hearing to the
petitioner on the petitioner's application for appointment as a notary. Let
this be undertaken within a period of three weeks from today.
(ii) On the basis of the recommendation of the Interview Board, the
respondent no. 3 is directed to pass a reasoned order on the petitioner's
application for appointment as a notary and the same be communicated
to the petitioner.
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(iii) Let this entire exercise be completed within a period of five weeks
from today.
(iv) All contentions of the parties are expressly kept open.
(v) Disposed of in the aforesaid term. No costs.
[ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.]
