Judgment :- Ghulam Mohammed The petitioner, a practising Advocate at Aswaraopet, in Khammam District, challenges the validity of sub-rule 4-A of Rule 8 of the Notaries Rules, 1956, and the consequential proceedings dated 31.1.2002 issued by the 3rd respondent declining to consider his application for appointment as a Notary. The writ petitioner is said to have been enrolled as an Advocate with the Bar Council of Andhra Pradesh on 20th July 1989. On 13.3.2000, he filed an application for considering his candidature for appointment as a Notary. That request has been turned down by the 3rd respondent through his proceedings dated 31.1.2002 on the ground that sub-rule 4-A which has been incorporated under Rule 8 of the Notaries Rules, 1956, had been brought into force with effect from 9th May 2001 and that the maximum number of notaries that can be appointed for the State of Andhra Pradesh was fixed at 575, whereas there were already 1256 notaries appointed and hence no fresh appointments can be considered to be made in the near future. Hence his request is declined. This gave rise to the present writ petition. The petitioner in WP No. 19811 of 2009 is enrolled as an Advocate with the Bar Council of State of Andhra Pradesh, Hyderabad on 14.2.1996 and he was a practitioner in Law at Piler town in Chittoor District. When he applied for appointment as Notary on 2.12.2008, the same has not been processed on the ground that the number of Notaries sanctioned for the State of Andhra Pradesh has already exceeded the maximum number fixed by the Central Government. Notaries Act, 1952, henceforth for convenience called the Act, has been enacted for regulating the profession of Notaries. Notaries are appointed for performing certain important functions. Earlier they were appointed in England by the Master of Faculties. However, after India has attained independence, it has come to be realised that for performing the functions of notaries in India, the authority cannot be drawn from the agency in England and hence with a view to regulate this profession, Notaries Act, 1952 has been enacted. It was brought into force on 14.2.1956. Section 3 of the Act gave power to the Central Government as well as the respective State Governments to appoint as Notaries, any legal practitioner or any other person who possess such qualifications as are prescribed for the said purpose. It was brought into force on 14.2.1956. Section 3 of the Act gave power to the Central Government as well as the respective State Governments to appoint as Notaries, any legal practitioner or any other person who possess such qualifications as are prescribed for the said purpose. Importantly, the functions which the notary can perform have been broadly identified and spelt out in sub-section (1) of Section 8. Amongst others, those functions include verification, authentication, certification or attestation after execution of any instrument; present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security, note and draw up ship’s protest, boat’s protest or protest relating to demurrage and other commercial matters etc. Sub-section (2) of Section 8 sets out that no act specified in sub-section (1) thereof shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal. Section 9 imposed a bar in practicing as a notary or performing any notarial act without holding a certificate of practice which is, in force, and issued to an individual under Section 5 of the Act. Section 12 has recognised any false representation by a person that he is a notary without being appointed as such or practising as a notary or performing any notarial act in contravention of Section 9 is an offence punishable with imprisonment for a term which may extend to three months or with fine or with both. Under Section 13, the procedure for taking cognisance of the aforementioned offence has been spelt out. Section 15 of the Act gave power to the central government, by notification in the official gazette to make rules for carrying out the purposes of the Act. Sub-section (2) has provided the details of the aspects and matters, which can be dealt with by the rules. Section 15 of the Act gave power to the central government, by notification in the official gazette to make rules for carrying out the purposes of the Act. Sub-section (2) has provided the details of the aspects and matters, which can be dealt with by the rules. The subjects over which the rules can be made include as to the qualifications of a notary for such appointment, the manner of disposal of applications for appointment as such, the certificates and testimonials required to be furnished for considering the appointment as a notary, the fee payable for appointment as a notary, the fee payable to a notary for doing any notarial act, the form of Registers and the particulars to be entered therein, the manner in which inquiries into allegations of professional or other misconduct of notaries may be carried out etc. Thus, sub-section (2) of Section 15 has very exhaustively laid out the subject matters, over which the rule making power can be exercised by the central government. Accordingly, the central government made the rules called “The Notaries Rules, 1956”. Rule (3) dealt with the qualifications necessary to be possessed by the candidates seeking appointment as Notaries. Rule 7(3)(b) has provided for the scope and manner of dealing with the applications submitted for such appointment. Rule 8 dealt with the appointments to be made as notaries. Sub-rule 4-A has been inserted therein by way of amendment through GSR 330(E), dated 9th May, 2001. Rule 7(3)(b) has provided for the scope and manner of dealing with the applications submitted for such appointment. Rule 8 dealt with the appointments to be made as notaries. Sub-rule 4-A has been inserted therein by way of amendment through GSR 330(E), dated 9th May, 2001. Since, it will have a bearing on the controversy in the instant case, it will be profitable to extract in full the same herein below: “8(4-A) – 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: 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. By virtue of the above sub-rule 4-A, the Central Government has introduced a new mechanism for regulating the appointments of Notaries by fixing the ceiling limit on the number of appointments that can be made both by the central government as well as the respective state governments. The necessary data in this regard has been furnished in the Schedule. Insofar as the State of Andhra Pradesh is concerned, the relevant data reads as under: Maximum number of Maximum number of notaries to be appointed Name of State/Union notaries to be appointed by State Government or Territory by the Central Union Territory Government Administration Andhra Pradesh 575 863 An analysis of sub-rule 4-A would indicate that the appropriate government would appoint Notaries not exceeding the numbers specified in the schedule. All those notaries appointed and practising, as at the time, the sub-rule has been introduced and who have been granted renewal, shall be counted in the total number of appointments that are to be made and in case the said number has exceeded the total number of notaries specified in the schedule, such number of notaries shall continue to be so appointed in that State. In other words, the existing number of notaries, if have exceeded already the total number of notaries specified in the schedule for a particular State, the very process of appointment of notaries will not be undertaken in that particular State, till such time their numbers actually come down, to fall below the ceiling limits. As was noticed earlier, the maximum number of notaries mentioned in the Schedule to be appointed by the State of Andhra Pradesh is standing at 863 whereas by the date of introduction of sub-rule 4-A, the total number of notaries appointed was standing at 1256 and thus their number exceeded the ceiling. By virtue of the 2nd proviso to sub-rule 4-A, if all these 1256 notaries seek further renewal of their certificates of practice and if they are otherwise entitled to be granted such renewals, no fresh appointment can ever be made, by the State of Andhra Pradesh. In other words, no appointments of notaries are likely to be made in this state, in the words of the 3rd respondent, in the near future. Whether that would amount to imposing a kind of prohibition on fresh entrants, who seek or desire to practice as Notaries, is the question that falls for our consideration in this writ petition. It is not in dispute or doubt that performance of various functions by a Notary is regarded as practising the said profession. The functions which a notary is entitled to be performed are undoubtedly important and some of them, doubtless, involve legal rights and obligations. For instance, apart from verification and authentication of instruments, a notary can perform the functions of noting and drawing up a ship’s protest relating to demurrage and other commercial matters. The expression `instrument’ has been defined in Section 2(b) of the Act as meaning every document by which any right or liability is, or purported to be created, transferred, modified, limited, extended, suspended, extinguished or recorded. It is, therefore, doubtless that grave legal consequences can follow from the functions performed by a notary. This could be one possible reason why Section 3 of the Act required persons who seek to be appointed as notaries to be legal practitioners or such persons should at least possess such qualifications which can render them fairly familiar with law and legal matters. This could be one possible reason why Section 3 of the Act required persons who seek to be appointed as notaries to be legal practitioners or such persons should at least possess such qualifications which can render them fairly familiar with law and legal matters. With the manifold increase of commercial activities, the need for performance of notarial acts and functions also increases. There could not have been any geographical limitations contemplated, for one to practice the profession of notaries, as the requirement of the services of a notary may arise in any sphere of commercial or legal environment. No one can, therefore, specify that the services of a Notary may never be required at a particular place or location. Hence, there could not have been any geographical limitations that could be prescribed. In other words, appointment of notaries cannot be confined to certain cities or towns or certain places or localities in such towns and cities etc.When once it is recognised that performing the functions of a notary, is a profession, any regulatory mechanism that can be contemplated should lead to an appropriate way of regulating the profession, but, ideally, shall not result in imposing total prohibition. Article 19(1)(g) of our Constitution has granted a fundamental freedom to carry on any profession to our citizens. Such a fundamental freedom can be regulated by a law in terms of clause (6) of Article 19. While in principle, a regulatory aspect can result in total prohibition in given circumstance, but nonetheless, it is absolutely necessary that any such steps or measures should bear the necessary relationship to the object sought to be achieved. The determination of what factors constitute a reasonable restriction can be subjected to judicial review. While in principle, a regulatory aspect can result in total prohibition in given circumstance, but nonetheless, it is absolutely necessary that any such steps or measures should bear the necessary relationship to the object sought to be achieved. The determination of what factors constitute a reasonable restriction can be subjected to judicial review. For purpose of ascertaining as to whether the restriction imposed is reasonable or unreasonable and as to whether it is necessary or unnecessary restriction upon lawful occupations, the rationale behind the measure can be tested.The facet relating to the right to impose reasonable restrictions for carrying out lawful profession in terms of clause (6) of Article 19 of the Constitution has fallen for consideration before the Supreme Court in Chintamanrao v. State of M.P. AIR 1951 SC 118 Mahajan, J, speaking for the Constitution Bench, has listed out the contours for a valid exercise in this regard in paragraphs 6 and 7 of the judgment as under: (6) THE question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupations; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in Art. 19 (1) (g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it. (7) THE phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19 (1) (g) and the social control permitted by cl. (6) of Art. 19, it must be held to be wanting in that quality. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19 (1) (g) and the social control permitted by cl. (6) of Art. 19, it must be held to be wanting in that quality. In Yet another decision rendered by the Supreme Court in State of Madras v. V.G.Row AIR 1952 SC 196 , Patanjali Sastri, Chief Justice of India, speaking for the Constitution Bench, had set out the relevant principle: “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorising the imposition of the restrictions, considered them to be reasonable." The responsibility of Judges in that respect is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over sometimes with emotional overtones. It is therefore, essential that we approach this constitutional question with objectivity and a proper measure of self restraint. It is therefore, essential that we approach this constitutional question with objectivity and a proper measure of self restraint. “16…… The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict….” It was further pointed out that when the government seeks to override a basic freedom guaranteed to the citizen, the same may be viewed as reasonable in very exceptional circumstances and within the narrowest limits and cannot receive judicial approval as a general pattern of reasonable restriction on fundamental rights. Applying these eternal principles of immense value to the present case scenario, firstly, the reasons for imposing the restrictions on the total number of notaries to be appointed for each State does not appear to bear any relation with the very objective of the statute viz., seeking to regulate the profession of Notaries. Secondly, it does not bear any relationship to the assessment of the requirements of each State. In other words, depending upon the size and population of each state as to how many notaries should be appointed, is incapable of a precise calculation or determination. Neither the size of the population or the size of the State has any such bearing on that question. What stands out importantly is the requirement for performing the notarial acts by those practising as notaries, can be dependent upon various social factors and the legal and commercial environment prevailing in the society. Further, from out of the total number of notaries now sought to be sanctioned to each state, there is no guarantee that all of them need to be spread across the breadth and length of the entire state. If a good majority of them are appointed or concentrated only at a particular place or locality, in such a situation, the very object for securing the services of notaries at various places can be frustrated inasmuch as the services of the notaries would not become available at all in certain areas or localities in the nearest future. If a good majority of them are appointed or concentrated only at a particular place or locality, in such a situation, the very object for securing the services of notaries at various places can be frustrated inasmuch as the services of the notaries would not become available at all in certain areas or localities in the nearest future. Further, there cannot be any assurance that the legal or commercial environment prevailing as of now, would remain static and does not improve or grow, in future calling for the requirement of services of Notaries, at such new places. Therefore, we have no hesitation to hold that the imposition of restriction on the maximum number of notaries to be appointed in each State, has in fact no basis or bearing for any evil that is sought to be checked or remedied. On the contrary, a perusal of Rule 7(3)(b) of the Notaries Rules has clearly indicated that there is enough power vested in the competent authority not to accord fresh appointments, if it is satisfied that no more notaries are required to be appointed in a particular area or locality. After all, the notaries already appointed are required to file the necessary data in Form XVI detailing all the notarial acts done by him during the preceding year before the State Government in terms of Rule 14. In other words, the State and its agencies have enough data before them as to the number of notarial functions performed by each of the notaries, from which data, the quantum of work that was called upon to be performed, can easily be assessed. By appointing a large number of notaries, conceivably there cannot be any problem created for the State or its administration or the citizens. The services of a professional notary, would only become available to the society in a good measure, should the requirement in that regard be felt. It is therefore clear to our mind that the functions liable to be performed by a professional notary cannot be restricted by imposing a ceiling on the total number of notaries that can be appointed for each State. There is no nexus between the mischief that is sought to be suppressed and fixation of a quota.We, therefore declare sub-rule 4A of Rule 8 of Notaries Rules as unconstitutional. There is no nexus between the mischief that is sought to be suppressed and fixation of a quota.We, therefore declare sub-rule 4A of Rule 8 of Notaries Rules as unconstitutional. We allow these writ petitions and direct the respondents 2 and 3 to take up the applications of the writ petitioners for appointment as a Notary respectively and pass orders considered appropriate thereon within a period of three months from the date of receipt of a copy of this order. No costs.