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Madhya Pradesh High Court · body

2009 DIGILAW 14 (MP)

AYAZ AHMAD KHAN v. STATE OF MADHYA PRADESH

2009-01-05

PRAKASH SHRIVASTAVA

body2009
Judgment ( 1. ) THIS order will govern the disposal of Writ Petition No. 7328/2008, Writ petition No. 7557/2008, Writ Petition No. 7559/2008, Writ Petition no. 7743/2008, Writ Petition No. 8042/2008, Writ Petition No. 8290/2008, Writ petition No. 8291/2008, Writ Petition No. 9650/2008 and Writ Petition no. 10204/2008. In all these matters a challenge has been raised to the selection and appointment of Notaries in Katni district which includes Katni, dheemarkheda, Bohriband, Rithi, Badwara and Barhi Tehsil. ( 2. ) FOR convenience facts of W. P. No. 7328/2008 have been noted in this order. Brief facts are that by notification dated 12-10-2007, 11 posts of notary were notified for Katni district which include 4 posts for Katni, 1 for dheemarkheda, 2 for Bohriband, 1 for Rithi, 2 for Badwara and 1 for Barhi. In pursuant to the notification, the State Govt. vide communication dated 31-10-07 wrote to the respondent No. 4 requesting him to sent a panel along with the memorial of eligible local Advocate by taking action under Rules 6 and 7 of the notary Rules, 1956. 77 candidates had filed the applications from Katni, 5 from dheemarkheda, 9 from Bohriband, 10 from Rithi, 14 from Badwara and 9 from barhi. The respondent No. 4 vide communication dated 14-12-2007 addressed to the President/secretary of the District Bar Association, Katni, invited objections by forwarding these names to the Bar Association. ( 3. ) THE respondent No. 4 thereafter forwarded the list of candidates on 25-1-2008 to the Principal Secretary of the Law and Legislative department of the State Govt. and by the impugned communication dated 9-6-08 the State conveyed it to the respondent No. 4 that names of respondent Nos. 5 to 15 were short listed for appointment as Notary in the aforesaid Tehsils of Katni District and the respondent No. 4 accordingly on 16-6-08 intimated the concerned respondents requiring them to deposit the requisite fee on non-judicial stamp etc. for further action. The petitioners submitted representation and objection dated 26-2- 2008 and 28-2-2008 to the State and thereafter filed the present writ petition challenging the selection of respondent Nos. 5 to 15 as Notary. ( 4. ) LEARNED Counsel appearing for the petitioner submitted that while selecting respondent Nos. 5 to 15, Rule 7 of the Notary Rules, 1956 (for short the Rules) has not been complied with. 5 to 15 as Notary. ( 4. ) LEARNED Counsel appearing for the petitioner submitted that while selecting respondent Nos. 5 to 15, Rule 7 of the Notary Rules, 1956 (for short the Rules) has not been complied with. Referring to Annexure R-1 filed along with the return of respondent Nos. 1 to 3 by which names were forwarded by the respondent No. 4, learned Counsel appearing for the petitioner submitted that while forwarding these names Rule 7 has been given a complete go bye. He further submitted that applications for appointment of other candidates were pending since before, therefore, there is violation of Rule 7 (e ). He further submitted that respondent Nos. 7,11 and 12 are not eligible for being appointed on the post of Notary. In support of his submission he placed reliance upon the judgments in the cases of Ashok Kumar Chowdhary Vs. State of M. P. , 1998 (1)MPLJ 490 and Suryakant Chandrakar Vs. State of Madhya Pradesh, AIR 2000 mp 260 . An allegation has also been made that notice dated 14-12-2007 issued to the Bar Association was not brought to the notice of members of the Bar association and was not put on the Notice Board of the Bar Association, Katni. ( 5. ) LEARNED Counsel appearing for respondent Nos. 1 to 3 has produced the original record of the case and has submitted that the decision to appoint respondent Nos. 5 to 15 has been taken by following the due procedure. ( 6. ) LEARNED Counsel appearing for respondent No. 4 submitted vide annexure R-1 objections were invited and since no objections were submitted, therefore, the list was forwarded by the respondent No. 4 and accordingly appointments have been made. He also made a submission that there is no procedure prescribed for assessing the suitability of the candidates, therefore, the list of all the eligible candidates was forwarded by respondent No. 4. ( 7. ) COUNSELS appearing for the selected candidates have challenged the locus of the petitioners to file the writ petition on the ground that they were not the applicants from the concerned Tehsil. They have further defended their appointment by submitting that the appointments have been done by following the prescribed procedure and that they fulfilled all the eligibility conditions and having been found suitable therefore, they have been rightly selected for appointment as Notary. ( 8. They have further defended their appointment by submitting that the appointments have been done by following the prescribed procedure and that they fulfilled all the eligibility conditions and having been found suitable therefore, they have been rightly selected for appointment as Notary. ( 8. ) I have heard learned Counsel for the parties and perused the record. ( 9. ) THE first question raised by the respondents is about locus of the petitioners. The petitioners in W. P. No. 7328/08 were the candidates who had submitted the memorials for their appointments as Notary from Katni. In the writ petition some of the candidates for whom the recommendation was made for Bohriband and Dheemarkheda have been impleaded as respondents and they have raised the objection on the ground that the petitioners had not submitted the application from those Tehsils, therefore, the petitioners have no locus. ( 10. ) COUNSEL for respondent Nos. 9 to 11 submitted that respondent no. 9, is a candidate from Dheemarkheda and respondent No. 11 is a candidate from Bohriband. No applications were moved by the petitioners from dheemarkheda and Bohriband, therefore, W. P. No. 7328/2008 could not have been filed by these petitioners and they have no locus to challenge the appointment of respondent Nos. 9 to 11. ( 11. ) SUCH a plea raised by respondent Nos. 9 to 11 is meaningless. It is correct that W. P. No. 7328/2008 has been filed by the applicants from Katni but there are other connected writ petitions filed by candidates from Bohriband and dheemarkheda. W. P. No. 7579/2008 has been filed by the candidates from dheemarkheda and Bohriband. Similarly, W. P. No. 7743/2008 and W. P. No. 10204/2008 have been filed by the candidates from Bohriband. ( 12. ) A preliminary objection has also been raised by Counsel for respondents raising a ground that writ petition is premature. Respondent Nos. 5 to 15 have not been appointed Notaries and only a decision has been taken to appoint and the matter is still pending consideration. ( 13. ) SUCH an objection has no merit since the very action of the respondent No. 4 under Rule 7 has been impugned in the matter. If the report sent by the respondent No. 4 to the State Govt. itself is not as per the requirements of Rule 7 then any action taken in pursuance to that report would be vitiated. ) SUCH an objection has no merit since the very action of the respondent No. 4 under Rule 7 has been impugned in the matter. If the report sent by the respondent No. 4 to the State Govt. itself is not as per the requirements of Rule 7 then any action taken in pursuance to that report would be vitiated. Even otherwise the original record indicates that on the basis of the report, names of respondent Nos. 5 to 15 have already been short listed by the state to appoint them as Notary and the formalities are being complied with in this regard. Thus, the objection that the writ petition is premature is rejected. ( 14. ) ANOTHER objection has been raised that there is alternative remedy available under Rule 8 (3), which provides for making an application to the appropriate Govt. for review of the order rejecting the application or allowing the application in respect of any part of the area to which it relates or challenging the order as to cost made under sub-rule (1 ). A reading of this rule indicates that a candidate can apply for review questioning rejection of his application but he cannot question the selection of other candidates who may have been selected by ignoring the relevant rules. Even otherwise the remedy of review cannot be held to be an equally efficacious remedy. Even if it is held to be equally efficacious alternate remedy then also availability of alternate remedy is not an absolute bar but it is only a self-imposed restriction. Considering the nature of dispute involved it would not be appropriate to reject the writ petitions on the ground that remedy of review is available under Rule 8 (3 ). ( 15. ) NOW coming to the merits of the case. The Notaries Act, 1952, has been enacted to regulate the profession of Notaries who are appointed for all recognized notorial purposes. Section 8 of the Act deals with the functions of the notaries which are wide and important in nature. The Notaries Rules, 1956, have been framed under the Act. Rule 3 prescribes qualification for appointment as a Notary. Rule 4 provides for making an application for appointment as a Notary in the form of memorial. Section 8 of the Act deals with the functions of the notaries which are wide and important in nature. The Notaries Rules, 1956, have been framed under the Act. Rule 3 prescribes qualification for appointment as a Notary. Rule 4 provides for making an application for appointment as a Notary in the form of memorial. Rule 6 provides for preliminary action on the application by the Competent Authority which includes satisfaction by the authority about qualification, earlier rejection of the application etc. and inviting objection from the Bar Association or Bar Council etc. Rule 7 prescribes the detailed procedure to be followed for making recommendations by the Competent Authority and reads as under:-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 either that the application may be allowed for the whole or any part of the area to which the application relates or that it may be rejected. (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. (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 practice as a notary; (b) Whether, having regard to the commercial importance of the area in which the applicant proposes to practice 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 practice, 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 proper and necessary to appoint any additional notary from that firm; and (e) Where applications from other applicants in respect of the area are pending, whether the applicant is more suitable than such other applicants. ( 16. ) IT is worth noting that under sub-rule (1) of Rule 7 the Competent authority is required to hold such enquiry as he thinks fit. The Competent authority after receiving the objections, if any, is required to make a report to the appropriate Govt. and the Competent Authority is required to make a recommendation either allowing the application for the whole or any part of the area to which the application relates or for rejecting it. Sub-rule (3) requires the matters which are to be taken into consideration while making the recommendation under sub-rule (1 ). Clause (e) of sub-rule (3) requires the authority to give due regard to the fact whether the applicant is more suitable than such other applicants where applications from other applicants in respect of the area are pending. The report sent by the Competent Authority under rule 7 is considered by the State Govt. under Rule 8 and the action on the report as prescribed in the rule is taken. The report sent by the Competent Authority under rule 7 is considered by the State Govt. under Rule 8 and the action on the report as prescribed in the rule is taken. ( 17. ) THE State had issued the circular dated 17-12-1998 stating that before sending the memorial for appointment, full enquiry will be made. Special emphasis was made to comply with the requirement of Rule 7 and making the recommendation of the competent candidates. By this circular the judgment of this Court reported in Ashok Kumar Chowdhary (supra) was required to be considered while making recommendation. ( 18. ) UNDER Rule 7 (1) on receipt of the application forms and objections the Competent Authority is required to hold appropriate enquiry then he is required to make a report to the appropriate Govt. and in that report he is required to make a recommendation and the recommendation should be either that the application may be allowed for the whole or any part of the area to which the application relates or that it may be rejected. ( 19. ) THIS Court in the matter of Ashok Kumar Chowdhary (supra), has considered the scope of Rule 7 of the Notary Rules and has held that the competent Authority is bound to follow the procedure laid down in Rule 7. The competent Authority is required to make endorsement regarding knowledge and experience of each applicant and their suitability for appointment. In the absence of any material before the State Govt. and without determining the comparative suitability of the applicants, no appointment can be made. This court in the matter of Ashok Kumar (supra), after noting Rule 7 held that :-11. After the applications are received, the Competent Authority, that is, District Judge, should not act as a post-office and forward the papers to the State Govt. The Competent Authority is bound to follow the procedure laid down in Rule 7 of the Rules. When there are more than one applications then the Competent Authority should have made recommendations for appointment of notary indicating the name of applicant, who is more suitable than other applicants. From the file it appears that enquiry as provided under rule 7 (3) has not been conducted. There is no endorsement by the district Judge regarding knowledge and experience of each applicant and their suitability for appointment. From the file it appears that enquiry as provided under rule 7 (3) has not been conducted. There is no endorsement by the district Judge regarding knowledge and experience of each applicant and their suitability for appointment. The notaries are required to perform a responsible job and they cannot be appointed in an arbitrary manner. The notary performs very important functions and his actions are having far reaching effects. He must have sound knowledge of the laws referred to in Rule 7 and in respect of Notaries Act, Oaths Act, Stamp Duty, conveyance and various types of documents and local laws. A confidential enquiry in respect of honesty and integrity before the licence is issued, should be held to determine the suitability of the applicant to hold such a creditable post of responsibility and credibility. The Competent authority should keep in mind and send the recommendations for appointment of notary after receiving the applications. In the present case, the Competent Authority has not sent recommendations. 12. In the absence of any material before the State Govt. and without determining the question as to person who is more suitable for appointment, no appointment could be made. From going through the record, it is apparent that the appointments have been made in an arbitrary manner without following the procedure of rule 7 (3) (e) of the Rules. ( 20. ) SAME issue came up before this Court in the matter of Suryakant chandrakar (supra), wherein this Court after noting Rule 7 held that:-"10. . . . . . . . A plain reading of Rule 7 (1) of the Rules makes it clear that the Competent Authority is required to make recommendation either that the application may be allowed for the whole or any part of the area to which the application relates or that it may be rejected under Rule 7 (3) of the Rules, the Competent authority while making recommendation is required to give due regard to various aspects enumerated in clauses (a) to (e ). Alter the report of the Competent Authority is required to consider the same and make appointment of Notaries. The State Govt, while making appointment of a Notary is required to consider the report. Here, in the present case, the Competent Authority has stated in clear terms that he did not make any recommendation. Alter the report of the Competent Authority is required to consider the same and make appointment of Notaries. The State Govt, while making appointment of a Notary is required to consider the report. Here, in the present case, the Competent Authority has stated in clear terms that he did not make any recommendation. From the letter of competent Authority dated 2nd March, 1998, it is apparent that he has just forwarded the memorials of 7 persons including respondent nos. 3 to 5 along with the other documents to the State Govt. for appropriate action. The original records have been produced before me by Mr. Ghildiyal and a perusal thereof also does not show that the Competent Authority had made any recommendation as required under Rule 7 of the Rules. In fact, he has forwarded memorials of all the applicants along with the documents. Such a recommendation was obliged to be made by the Competent authority under Rule 7 of the Rules. Non-rejection of the memorials under Rule 6 of the Rules and forwarding the same along with the documents of the respective memorialists, in my opinion, cannot be construed as recommendation of the competent Authority. He has thus failed to discharge his statutory obligation. That being so, appointment of the respondent Nos. 3 to 5 as Notaries suffers from procedural ultra vires and cannot be allowed to stand. The view which I have taken finds support from the judgment of this Court in the case of Ashok Kumar Chowdhary (supra ). ( 21. ) SUPREME Court also in the matter of S. D. Chaddha Vs. State of U. P. and others, (2003) 12 SCC 119, has declined to approve the appointment made in violation of Rule 7. ( 22. ) IN the present case, the reports which were sent by the respondent no. 4 for Tehsil Barhi, Rithi, Dheemarkheda, Bohriband, Badwara and Katni in terms of Rule 7 to the State Govt. are available in the original record submitted by the Counsel for the State. A perusal of these reports indicate that the respondent No. 4 in these reports had only noted the name, date of birth, caste, place of residence, registration No. and year and number of years of practice of the candidates. The respondent No. 4 only by noting the aforesaid factual details had forwarded the report to the State Govt. A perusal of these reports indicate that the respondent No. 4 in these reports had only noted the name, date of birth, caste, place of residence, registration No. and year and number of years of practice of the candidates. The respondent No. 4 only by noting the aforesaid factual details had forwarded the report to the State Govt. In the reports in terms of Rule 7 (1)there is no recommendation by the respondent No. 4 for accepting the application of any candidate or rejecting it. There is also no recommendation to accept the application of any candidate for the whole of the area or any part of the area to which the application relates. Rule 7 (1) requires the Competent authority to make a recommendation which denotes a positive act of application of mind on the relevant factors enumerated in Rule 7 and a conclusion by the Competent Authority in respect of each candidate for accepting or rejecting the application or accepting the application for whole or any part of the area. ( 23. ) IN terms of Rule 7 (3) (c), the Competent Authority is required to consider the 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 practice and record a conclusion if the applicant is fit to be appointed as a Notary. The report does not indicate that any of the factors required to be considered by the Competent Authority under rule 7 (3) have been considered. In the report, no finding as regards the fitness of the candidate for being appointed as Notary as required by Rule 7 (3) (c) has been recorded. The report has been prepared completely ignoring the requirements of Rule 7 of the Rules and the judgment of this Court in the matter of Ashok Kumar Chowdhary (supra) and Suryakant Chandrakar (supra ). ( 24. ) IT is worth noting that it is this report which is considered by the state under Rule 8 to accept or reject the application. Since the report itself does not contain any material in support of the fitness of the candidates to be appointed as Notary, therefore, sufficient material was not available before the state Govt. ( 24. ) IT is worth noting that it is this report which is considered by the state under Rule 8 to accept or reject the application. Since the report itself does not contain any material in support of the fitness of the candidates to be appointed as Notary, therefore, sufficient material was not available before the state Govt. to take a fair decision to accept or reject any application under Rule 8. ( 25. ) A perusal of the original record indicates that all the names, which were forwarded by the respondent No. 4, were placed before the Law Minister with certain nothings by the Additional Secretary, Law. The Law Minister picked up the names of respondent Nos. 5 to 15 for appointment as Notary in Katni, barhi, Rithi, Dheemarkheda, Bohriband and Badwara. There is nothing on record to show on what basis these names were picked up. Rules nowhere prescribe for appointment by draw of lots. Thus, it is found that the concerned respondents have been selected in complete violation of Rule 7. ( 26. ) IN view of the aforesaid analysis it is held that respondent Nos. 5 to 15 have been selected for appointment as Notaries in violation of Rule 7. The report in the form of panel which was forwarded by the respondent No. 4 to the state Govt. dated 25-1-2008 was prepared without complying with the requirements of Rule 7. Therefore, the reports dated 25-1-2008 sent by the respondent No. 4 in respect of Tehsil Barhi, Rithi Dheemarkheda, Bohriband, badwara and Katni are set aside. Any decision taken by the State Govt. in pursuance to the said report and any order issued in favour of respondent Nos. 5 to 15 in pursuance to the selection made on the basis of the aforesaid report is also set aside. The matter is remitted back to the Competent Authority to send the fresh report to the Government after complying with the provisions contained in Rule 7 keeping in mind the law settled in the judgments noted above. ( 27. ) THE writ petition is accordingly disposed of. No orders as to costs.