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Madhya Pradesh High Court · body

2009 DIGILAW 1234 (MP)

PANAH MOHAMMED v. STATE OF M. P.

2009-11-03

AJIT SINGH

body2009
JUDGMENT AJIT SINGH, J. ( 1 ) BY this petition the petitioner has challenged the selection and appointments of respondent nos. 3 to 5 as notaries in District Tikamgarh vide order dated 9. 9. 1998, Annexure P5, passed by respondent no. l. ( 2 ) THE facts are these. On the death of Notary Shankar Prasad Sinha in District tikamgarh his post fell vacant. The President and Members of District Bar Association, tikamgarh, therefore, made a representation dated 21. 5. 1997, Annexure PI, to respondent no. 2 for the appointment of notary. Respondent no. 2 responded by issuing a notification inviting applications from persons interested for appointment as notary. As many as 11 applications including that of petitioner and respondent nos. 3 to 5 were received. Respondent no. 2 published the list of names of all 11 applicants in the Gazette notification dated 15. 5. 1998, Annexure P3, for inviting objections but no objections were received against any of the applicants. Respondent no. 2 thereafter sent his report dated 6. 7. 1998 to respondent no. l wherein he recommended the names of three applicants, viz. Subhash Chandra Jain, Vinod Pastor (respondent no. 3) and Smt. Prabha Gupta (respondent no. 4) and stated that amongst these three any one may be appointed. In the meantime, three more posts of notary were created by the State government in Tikamgarh district. Respondent no. l, after examining the report of respondent no. 2 as well as the applications of all the applicants appointed respondent nos. 3 to5 as notaries by the impugned order dated9. 9. 1998, Annexure P5. Respondent no. 1 had also found that the application of petitioner was not complete as it was not countersigned by a manager of a nationalised bank. ( 3 ) THE learned counsel for petitioner has argued that, while selecting and appointing respondent nos. 3 to 5 as notaries, the provisions of Rules 6 and 7 of the notaries Rules 1956 have not been complied with and, therefore, their appointments were liable to be quashed. He also submitted that although the report of respondent no. 2 was sent for the appointment of only one applicant, respondent no. 1 committed an illegality in appointing three applicants. The learned Government Advocate, on the other hand, submitted that the appointments were made by following the due procedure. He also submitted that although the report of respondent no. 2 was sent for the appointment of only one applicant, respondent no. 1 committed an illegality in appointing three applicants. The learned Government Advocate, on the other hand, submitted that the appointments were made by following the due procedure. He also produced the original record pursuant to the order of this court and argued that, since the application of petitioner was incomplete he could not have been appointed as notary in any case and, therefore, he has no locus standi to challenge the appointments of respondent nos. 3 to 5. According to the learned Government Advocate, respondent no. 1 was folly empowered and justified in appointing respondent nos. 3 to 5 as three new posts of notary were created the learned counsel appearing for respondent nos. 3 to 5 have adopted the arguments advanced by the learned Government Advocate. ( 4 ) AFTER hearing the learned counsel for parties, I deem it proper to first examine whether the petitioner could have been appointed as a notary on his application ( 5 ) THE Notaries Rules 1956 have been framed under section 8 of the Notaries act 1952. Rule 3 prescribes qualification for appointment and rule 4 deals with the application for appointment as a notary. Sub-rule (1) of rule 4 provides for making an application in the form of memorial and sub-rule (2) even prescribes form-I of memorial for the applicants, such as petitioner. Sub-rule (3) further provides that the memorial of a person shall be signed by the applicant and shall also be countersigned by the persons mentioned therein. Sub-rule (3) of rule 4 reads as under: "4. Application for appointment as a notary.- (1 ). . (2 ). . (3) The memorial of a person referred to in clause (a) of rule 3 shall be signed by the applicant and shall be countersigned by the following persons:- (a) a Magistrate; (b) a Manager of a nationalised bank; (c) a merchant; and (d) two prominent inhabitants of the local area within which the applicant intends to practise as a notary. (3) The memorial of a person referred to in clause (a) of rule 3 shall be signed by the applicant and shall be countersigned by the following persons:- (a) a Magistrate; (b) a Manager of a nationalised bank; (c) a merchant; and (d) two prominent inhabitants of the local area within which the applicant intends to practise as a notary. " Likewise, requirement of counter signature on the memorial by the persons mentioned in sub-rule (3) is also clearly stated in the Note appended to Form-I which is as follows:"note.- Under rule 4 (3) the memorial should be countersigned by a Magistrate, a manager of a Nationalised Bank, a merchant and two prominent inhabitants of the area where he intends to practise as a notary. " ( 6 ) FROM the reading of sub-rule (3) and aforesaid Note in Form-I it becomes clear that for complete memorial by a person seeking appointment as a notary, the memorial has to be signed by the applicant and also to be countersigned by the persons mentioned therein. The words in the sub-rule "shall be counter signed by the following persons" is a mandatory requirement to make the memorial (application) complete which could be considered by the competent authority and later by the State Government. The use of word "shall" in sub-rule (3) and also in the Note Form-I raises a strong presumption that the provision is mandatory. It is to be seen that notary performs very important functions and his actions have far reaching effects. His integrity and honesty must, therefore, be above board. It is for this reason a mandatory provision has been made that the memorial of a person seeking appointment as a notary must be countersigned by persons such as magistrate, a manager of a nationalised bank, etc. In the case of petitioner, the memorial was incomplete as it was not countersigned by a manager of a nationalised bank as required by sub-rule (3) (b ). The argument of the learned counsel for petitioner that the competent authority (respondent no. 2) should have informed the petitioner that his application was incomplete, is not acceptable because there is no such provision in the Rules making it obligatory on the competent authority to inform the applicant about the defect in the application and get it corrected. The argument of the learned counsel for petitioner that the competent authority (respondent no. 2) should have informed the petitioner that his application was incomplete, is not acceptable because there is no such provision in the Rules making it obligatory on the competent authority to inform the applicant about the defect in the application and get it corrected. The consideration of application under Rule 6 by the competent authority for appointment as notary is only in respect of an application which complies with the requirement of Rule 4. An application which does not comply with the mandatory requirements of rule 4 cannot be said to be an application for an appointment of notary needing consideration by the competent authority under rule 6. The rejection of an application for appointment as a notary under rule 6 is only in respect of applications which are fully in conformity with rule 4 but where the applicant does not possess the qualifications specified in rule 3 or his application for appointment as notary was earlier rejected within six months. ( 7 ) FOR these reasons the petitioner in any case could not have been appointed as a notary and, therefore, he has no locus standi to challenge the appointments of respondent nos. 3 to 5 as notaries. In view of my this finding, I do not find it necessary to examine the other submission of petitioner that provisions of Rule 7 were not followed by respondent no. l in making the appointments of notaries. ( 8 ) THE petition fails and is dismissed but without any order as to costs. Petition dismissed. .