Dayanand Swaroop Aggarwal And ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 783 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The petitioners have challenged the legality and validity of the appointment of respondents 3 to 18 to perform the function of notaries under the Notaries Act, 1952 (hereinafter referred to as the said Act) in District Bulandshahar, U.P. The petitioners themselves are also notaries practicing as such in District Bulandshahar, U.P. The petitioners were appointed by the State Government whereas the respondents 3 to 18 are notaries appointed by the Central Government. These facts are not in dispute.

2. The only bone of contention is that the respondents 3 to 18 who have been appointed as such by the Central Government have not been appointed validly inasmuch as the competent authority has not recommended their cases for such appointment. According to the learned counsel for the petitioner the competent authority is the District Judge, Bulandshahar (Respondent No.2) herein. He has referred to a letter dated 11.1.1996 purportedly issued by the District Judge and addressed to the Judicial Secretary and Legal Remembrancer, U.P., Lucknow to the effect that appointment of respondents 3 to 18 were illegal and done without any recommendation or intimation of the District Judge. A counter affidavit has been filed by Shri Prem Nath, First Civil Judge, Judicial Division, Bulandshehar, U.P. On behalf of the District Judge, Bulandshehar, i.e. respondent No.2. In that affidavit at paragraph 5 it is categorically stated as under:-

"5. That the contents of earlier part of para 4 of the Writ petition relates to Respondent No.1, no specific reply is needed. It is submitted that present petition is based on a fictitious and forged letter shown as Annexure P/1. It is emphatically denied that letter dated 11-1-1996 was written and issued in this connection from the office of District Judge, Bulandshahr to Judicial Secrertary/Legal Remembrancer, U.P., Lucknow. As a matter of fact, the recommendation of the names of respondents 3 to 18 for appointment as Notary was never made by the District Judge, Bulandshahr. The sheet - anchor or the basis of claim of the petitioners i.e. the letter dated 11-1-1996, purported to have been written by the in charge District Judge, Bulandshahr, is a fake and fictitious document manufactured for the purpose of the Writ petition. Nor such letter was ever written or issued by the District Judge or I/C District Judge, Bulandshahr."

It is clear that the document on which the petitioner relies cannot be relied upon in view of the categorical statement on behalf of respondent No.2 as indicated above.

3. Be that as it may, learned counsel appearing on behalf of respondent No.2 submits that even if it were to be assumed that such a letter was written, it would be of no effect inasmuch as the District Judge is not the competent authority in the facts and circumstances of the present case. Under The Notaries Rules, 1956 (hereinafter referred as the Rules) an application for appointment as a Notary is to be made under Rule 4 in the form of a memorial addressed to such officer or authority of the appropriate Government as the Government may, by notification in the Official Gazette, designate in this behalf. Such officer or authority of the appropriate government is conveniently termed as the "competent authority". The appointments made in respect of respondents 3 to 18 have been made by the Central Government and not by the State Government. In this context, it would be relevant to point out Section 3 of the said Act which empowers the Central Government as well as the State Government to appoint Notaries. Insofar as the Central Government is concerned, it may appoint notaries for the whole or part of India and insofar as the State Government is concerned, it may appoint Notaries for the whole or any part of the concerned State. So, it is clear that Notaries may be appointed either by the State Government or by the Central Government. In case the appointments are made by the Central Government, the concept of appropriate Government, as indicated in Rule 4 would have to be construed in terms of the definition given to appropriate Government in Rule 2 (a) of the said Rules. Rule 2(a) prescribes that "appropriate Government" means, in relation to a notary appointed by the Central Government, the Central Government, and in relation to a notary-appointed by the State Government, the State Government. Reading Rule 4 with the definition contained in Rule 2(a), it is apparent that the competent authority must be of the appropriate Government. In other words, the competent authority in the case of appointments made by the Central Government will be an officer or authority of the Central Government. In this case, it is an admitted position that the respondents 3 to 18 had been appointed by the Central Government and, therefore, the officer or authority mentioned in Rule 4 will be an officer or authority of the Central Government and not of the State Government. As such, the District Judge, Bulandshehar (respondent No.2) would not be the competent authority for this purpose.

4. The learned counsel for the petitioner has referred to an order of the Supreme Court in Writ Petition No. 15217/1984, entitled D.S. Chaddha v. State of U.P. & Ors., wherein the Supreme Court had directed the District Judge to consider the applications of persons to be the Notaries in accordance with Rules 6 and 7 of the Notaries Rules, 1956 framed under Section 15 of the Notaries Act, 1952. Apparently that was a case of appointment of Notaries by the State Government. The present case is one of appointment of Notaries by the Central Government and as such, the said order would be of no use to the petitioners' case in view of the different facts and circumstances of the present case.

5. It is pertinent to mention that applications for appointment as a Notary have to be made under Rule 4. Upon such an application being made under Rule 6 preliminary action is taken thereon by the competent authority who is required to examine every application received by him and, if he finds 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. Under Rule 6(2) the competent authority, if he does not reject the application, may 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. Thereafter, under Rule 7 the competent authority 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 specified is to make a report to the appropriate Government recommending either that the application be allowed for the whole or any part of the area to which the application relates or that it be rejected. Thereafter, as provided under Rule 8, on receipt of the report of the competent authority, the appropriate Government is to consider the report and make such orders of acceptance or rejection of the application for appointment as notary.

6. The learned counsel for the petitioner has not been able to point out any Rules which have been contravened in the appointment of respondents 3 to 18 as notaries by the Central Government. His only plea was that the competent authority was the District Judge and District Judge has not been consulted, and, therefore, provisions of Rules 4,6 and 7 have not been complied with. I have already held that the appropriate Government in this case being the Central Government, the competent authority would be an officer or authority of the Central Government. I have also held that the respondent No. 2 (District Judge) was not the competent authority in this particular case. As such, the plea of the petitioners, being itself based on a faulty premise cannot be accepted.

7. In view of the aforesaid facts and circumstances and discussion, the writ petition has no merit and is dismissed as such. The petitioners are to pay the costs to the respondent No. 2 which are quantified at Rs. 5000/-.