(2012) 263 KLR 245 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934 WP(C).No. 2347 of 2011 (P) -------------------------- PETITIONER(S): ------------- NASEERA BEEGUM, ADVOCATE, BASHEERA MANZIL, VAVVAKKAVU P.O., KOLLAM DISTRICT. BY ADVS.SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LAW, THIRUVANANTHAPURAM-695 001. 2. SATHEESHKUMAR, ADVOCATE & NOTARY, KARUNAGAPPALLY, KOLLAM-690 518. 3. SUHOTHARAN, ADVOCATE & NOTARY, KARUNAGAPPALLY, KOLLAM-690 518. 4. VIJAYAKRISHNAN, ADVOCATE & NOTARY, KARUNAGAPPALLY, KOLLAM-690 518. R1 BY GOVERNMENT PLEADER SMT.P.MAYA R2 BY ADV. SRI.K.R.SUNIL R3 & R4 BY ADV. SRI.J.OM PRAKASH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENT'S EXHIBITS:
/TRUE COPY/ P.A. TO JUDGE VPV P.N.RAVINDRAN,J. ------------------------------- W.P.(C) No.2347 of 2011 -------------------------------------- Dated this the 4th day of June, 2012 Head Note:- Notaries Act, 1956 - Section 15(3) - Notaries Rules, 1956 - Rules 4(1), 6, 7 and 8 - Notaries (Amendment) Rules, 2009 - Rules 7A and 7B - Applications for appointment as Notary which were pending on 1.3.2009 can be disposed of only in accordance with the amended rules. J U D G M E N T The petitioner, a lawyer by profession, applied for appointment as Notary in Karunagappilly Taluk by submitting Ext.P1 application dated 2.2.2006. The competent authority nominated by the Government considered the application, conducted an inspection and recommended the name of the petitioner for appointment as Notary Public. It appears, even without an order of the Government the petitioner remitted the fee of Rs.1,000/- on 8.3.2006 in the Sub Treasury at Karunagappilly and produced the counterfoil evidencing payment of the fee before the Law Secretary and requested him to issue a Certificate of Practice. When no action was taken in the matter, she filed W.P.(C) No.22416 of 2006 in this Court seeking a writ in the nature of mandamus, commanding the State of Kerala to issue a Certificate of Practice, authorising her to practice as Notary in Karunagappilly Taluk. It was contended that as the application submitted by the petitioner stands allowed and as directed by the State she had remitted the prescribed fee for the issuance of a Certificate of Practice, the delay on the part of the State in issuing the Certificate of Practice is arbitrary and illegal. Relying on rule 8(4) of the Notaries Rules, 1956 it was contended that once an application is allowed and the prescribed fee is remitted, the applicant is entitled to a Certificate of Practice. 2. The State of Kerala resisted W.P.(C)No.22416 of 2006 by filing a counter affidavit. In paragraphs 2 to 7 thereof it was contended as follows: "2. It is true that the petitioner had submitted an application on 02.02.2006 for appointment as Notary Public. The same was subjected to processing. It is usual to enquire with Bar Council as to the credentials of the applicant as and when applications were received for appointment as Notary Public. In the case of the petitioner also due enquiry was made with the Bar Council of Kerala. It is also true that the competent authority, in compliance with Rule 7 of the Notaries Rules 1956, conducted inspection and recommended the name of the petitioner to be appointed as a Notary public. The Government has discretionary powers either to appoint or to reject the application for appointment as notary public. 3. The sustitution of the word 'may' for the word 'shall' in Section 5 of the Notaries Act 1952 by Central Act 36 of 1999, confer ample discretion upon the Government either to allow the application or to reject the same. In Chandrasekharan Vs. State of Kerala (2004 (1) ILR Kerala Page 351) Division Bench of this Hon'ble Court had declared that 'appropriate authority is vested with the discretion to renew or refuse the request for renewal. Equally, it also has the discretion to make appointments'. 4. Rule 8 of the Notaries Rules, 1956 provides that on receipt of the report of the competent authority the appropriate Government shall consider the report 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 that 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. 5. It is not true to state that the petitioner was directed by the Government to remit Rs.1000/- towards the fee. The petitioner herself volunteered to remit the fee without any requisition by Government. 6. It is submitted that as per the Notification No.GSR 330 (E) dated 09-05-2001 Sub Rule (4A) was inserted in Rule 8 of Notaries Rules 1956 which reads as follows: "(4A). The appropriate Government may on and after the 9th 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 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 9th 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". 7. It is also submitted that as per the Notaries Rules the maximum number of Notaries that can be appointed by the State Government was 375. Now, the number has been raised to 563 by amendment to the schedule to the Notaries Rules. But at present, the total number of Notaries practicing in the State, appointed by the State Government is 756. As such, any further appointment of notary would result in the violation of Notaries Rules 1956. Hence, Government is not in a position to appoint the petitioner and similarly placed applicants until the number of notaries come down to the stipulated number of 563. Now, the Government have requested the Central Government to enhance the number of notaries to 1000, if the said request is allowed by the Central Government taking into account of the higher requirement of notaries for the NRIS and general public of the State. I hereby assure that the petitioner's case will be considered favourably in accordance with law." 3. The State of Kerala contended that though the competent authority had recommended the name of the petitioner for appointment as Notary Public, the Government had not made the appointment and issued the Certificate of Practice, that the Government had also not directed the petitioner to remit the fee, that she voluntarily remitted the fee without instructions from the Government, that as on the date of submission of the application, as against the prescribed limit of 563 notaries, 756 notaries had been appointed, that any further appointment would result in violation of the rules and therefore, the Government are not in a position to appoint the petitioner and similarly placed applicants. It was stated that the Government have requested the Central Government to enhance the number of Notaries to 1,000 and if the said request is allowed, the petitioner's case will be considered in accordance with law. 4. W.P.(C)No.22416 of 2006 came up for hearing before a learned single judge of this Court on 22.10.2008. Taking note of the stand of the State Government in its counter affidavit, a learned single judge of this Court disposed of the writ petition by Ext.P2 judgment delivered on 22.10.2008 with the following directions: "Petitioner is aggrieved since she is not appointed as a Notary Public. In the counter affidavit it is stated that the case of the petitioner will be considered favourably as and when the number of Notaries in the State is increased. Therefore, the writ petition is disposed of making it clear that as and when the number of Notaries in the State is increased the petitioner will be preferably considered." 5. This writ petition is filed contending that notwithstanding the directions in Ext.P2 judgment to the effect that the petitioner will be preferably considered, respondents 2 to 4 who applied for appointment as Notary only after the petitioner applied have been appointed as Notary, thereby overlooking the petitioner's preferential claim. It is contented that as the petitioner's application was allowed and the prescribed fee was also remitted, she was entitled to be appointed as Notary in preference to those who applied later than her. On these grounds, the petitioner has prayed for the following reliefs: "a) to issue a writ in the nature of mandamus or any other writ, order or direction to the 1st respondent to appoint the petitioner as Notary forthwith. b) to issue a writ in the nature of certiorari or any other writ, order or direction to call for the records leading to the appointment of respondents 2 to 4 and quash the same. c) to declare that appointment of respondents 2 to 4 as Notaries overlooking the preferential claim of the petitioner is highly arbitrary, malafide, unsustainable, opposed to the direction contained in Ext.P2 judgment, discriminatory and violative of Article 14 of the Constitution of India." 6. The first respondent has sworn to a counter affidavit dated 13.12.2011. In paragraph 2 it is stated that as per the provisions contained in rule 8(4A) of the Notaries Rules, 1956 introduced with effect from 9.5.2001, the Government cannot appoint Notaries exceeding the number specified in the schedule, that at the time of the introduction of 8(4A) the maximum number stipulated in the schedule was 375 but 824 Notaries were already appointed, meaning thereby that 499 Notaries were in excess, that later the limit was raised from 375 to 563 with effect from 19.5.2006, that even thereafter 261 Notaries were in excess and therefore, the Government could not have appointed the petitioner as Notary and therefore, the Certificate of Practice and the notification appointing the petitioner as Notary were not issued. With reference to Ext.P2 judgment it is stated that respondents 2 to 4 were appointed prior to the date of Ext.P2 judgment, a copy of which was received by the Law Department only on 11.6.2011 and therefore, it cannot be said that the preferential claim of the petitioner was overlooked. The counter affidavit proceeds to state that in view of the amendments introduced to the Notaries Rules, 1956 by amending sub-rule (1) of rule 4, sub-rule (1) of rule 6 and sub-rule (1) of rule 7 and by introducing rules 7A and 7B therein, all memorials received by the competent authority which are pending on 22.2.2007 have to be processed and examined in accordance with the provisions in the rules as amended, that on and with effect from 1.3.2009 the appointment of a Notary Public can be made only on receipt of the recommendation of an interview board, that as on 1.3.2011 the maximum permissible number of Notaries in the State of Kerala was 845, that Government have already appointed 895 Notaries and therefore, the petitioner cannot be appointed. 7. Respondents 3 and 4 have filed a counter affidavit dated 28.5.2012. It is stated that the third respondent applied for appointment as per memorial dated 12.5.2006 and the fourth respondent applied as per memorial dated 11.11.2008, that their applications were considered in accordance with the provisions contained in the Notaries Rules, 1956 as amended and after interview their names were recommended for appointment. It is stated that thereafter they remitted the prescribed fee as directed by the Government and consequently, Ext.R3(d) and Ext.R3(h) Certificates of Practice were issued and a notification was also published in the Official Gazette appointing them as Notaries in Karunagappilly Taluk. Respondents 3 and 4 have in their counter affidavit contended that the petitioner who was not interviewed and was not recommended for appointment by the interview board cannot seek or be granted any of the reliefs prayed for. Respondents 3 and 4 have in the counter affidavit also stated that after they were appointed, two other persons namely Sri.C.S.Anilkumar, Advocate and Sri.P.Suran, Advocate were appointed as Notaries in Karunagappilly Taluk itself in April 2011. 8. I heard Sri.K.Karthikeya Panicker, learned counsel appearing for the petitioner, Smt.P.Maya, learned Government Pleader appearing for the first respondent and Sri.J.Omprakash, learned counsel appearing for respondents 3 and 4. Sri.K.Karthikeya Panicker, learned counsel appearing for the petitioner contended relying on the averments in the counter affidavit filed on behalf of the State in W.P. (C) No.22416 of 2006 that the State had offered to appoint the petitioner as and when the number of Notaries is increased based on the memorial submitted by her on 2.2.2006 and therefore, the State ought to have appointed the petitioner as Notary ignoring the amended provisions of the rules. Referring to sub-section (3) of section 15 of the Notaries Act, 1956, the learned counsel contended that any amendment to the Notaries Rules, 1956 cannot prejudicially affect the validity of the previously committed act and therefore, the petitioner who was appointed as Notary cannot be denied a Certificate of Practice on the ground that the Government have not issued a notification appointing her as Notary in accordance with the provisions in the new rules. Per contra, the learned Government Pleader appearing for the first respondent and Sri.J.Omprakash, learned counsel appearing for respondents 3 and 4 contended that sub-section (3) of section 15 of the Act only stipulates that every rule made by the Central Government including an amendment to the rule will have effect only in such modified form or will have no effect as the case may be, depending on the decision of both Houses of Parliament, and in a case where the House decides that the amendment to the rule should not have been made or the rule shall have effect only in such modified form, then, any such modification of the amended rule will not prejudicially affect the validity of anything previously done under the rule which was placed for consideration of the House. The learned counsel appearing for the respondents contended that sub-section (3) of section 15 admits of no other interpretation that the petitioner who was not called upon to remit the stipulated fee and was not appointed by the Government by a notification and to whom a Certificate of Practice was not issued, cannot be heard to contend that she was appointed as a Notary and therefore, the amended rules will not apply. The learned counsel also contended that even at the time the earlier writ petition was disposed of, a direction to appoint the petitioner was not issued, but the only direction issued was that as and when the number of Notaries is increased, the petitioner will be preferably considered, that the said direction cannot be interpreted to mean that as and when the number of Notaries in the State is increased, the petitioner will be preferred for appointment and therefore, no relief can be granted in the instant writ petition. 9. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The petitioner's application for appointment as Notary is dated 20.2.2006. As on that date, the maximum number of Notaries that could have been appointed in the State of Kerala was 375. The number was raised to 563 with effect from 19.5.2006 by amending the Schedule to the Notaries Rules, 1956. It is also not in dispute that as on 19.5.2006 the State Government had appointed 824 Notaries. As on the date on which the petitioner applied, 449 Notaries were in excess of the prescribed limit and even as on 19.5.2006, 261 Notaries were in excess. The number of Notaries was raised to 845 with effect from 31.10.2007, when the Schedule to the Notaries Rules, 1956 was again amended by the Central Government. It is evident from the pleadings and the materials on record that though the competent authority notified by the Government had recommended the name of the petitioner for appointment as Notary Public, no appointment order was issued. The Government had also not called upon the petitioner to remit the stipulated fee. She however remitted the stipulated fee and thereafter filed W.P.(C)No.22416 of 2006 in this Court for an order directing the State of Kerala to issue a Certificate of Practice. The State resisted the writ petition contending inter-alia that no order of appointment has been issued, that the petitioner had remitted the fee voluntarily and that the petitioner's application can be considered only if the request made by the State Government to increase the number of Notaries is allowed. The undertaking given on behalf of the State in W.P.(C) No.22416 of 2006 was that "the petitioner's case will be considered favourably in accordance with law." After W.P.(C) No.22416 of 2006 was disposed by Ext.P2 judgment, sub-rules (1) of rules 4, 6, 7 and 8 of the Notaries Rules, 1956 were amended and rules 7A and 7B were newly introduced therein with effect from 1.3.2000. By the said amendments, the procedure prescribed for appointment was drastically changed. Sub-rule (1) of rule 4 was amended and the amended sub- rule (1) of rule 4 of the Notaries Rules is extracted below: "4.(1) a person may make an application for appointment as a notary (hereinafter called "the applicant"), through the concerned District Judge or the Presiding Officer of the Court or Tribunal where he practises as an Advocate, in the Form of memorial addressed to such officer or authority (hereinafter referred to as the "competent authority") of the appropriate Government as that Government may, by notification in the Official Gazette, designate in this behalf." Sub-rule (1) of rule 6 was also amended and the amended rule is extracted below: "6.(1) the competent authority shall examine every application received by him and if he is satisfied that the application is not complete in all aspects 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." Sub-rule (1) of rule 7 was also amended and the amended rule is extracted below: "7.(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." Rule 7A and 7B of the Notaries Rules which were newly introduced are extracted below: "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, a three members Interview Board shall be constituted by the appropriate Government from amongst its officers dealing with legal matters. The Chairperson of the Interview Board shall not be an officer below the rank of Joint Secretary of that Government. 7B. Transitional provision.- (1) All the memorials received by the Competent Authority till 28th February, 2009 and which are pending shall be processed/examined in accordance with the provisions of the rules as amended by the Notaries (Amendment) Rules, 2009. (2) The fresh memorials shall only be submitted on or after 1st July, 2009." Sub-rule (1) of rule 8 was also amended. The amended sub-rule (1) of rule 8 is extracted below: "8.(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 cost of the application including the cost of hearing, if any, shall be borne." 10. The amended provisions of the Notaries Rules extracted above especially rule 7B disclose that all the memorials received by the competent authority till 28.2.2009 and which are pending shall be processed and examined in accordance with the provisions of the rules as amended by the Notaries (Amendment) Rules, 2009. As per amended sub-rule (1) of rule 4, an application for appointment as Notary has to be made through the concerned District Judge or the Presiding Officer of the Court or Tribunal where the applicant practises as an Advocate to the competent authority notified by the Government. As per sub-rule (1) of rule 7, if after enquiry the competent authority is satisfied that the applicant should be allowed to appear before the interview board constituted under rule 7A, the competent authority may make a recommendation in that regard to the Government. If the Government allows the applicant to appear before the interview board, the competent authority has to inform the applicant to appear before the interview board. It is based on the recommendations of the interview board that the appointment has to be made. In view of the amendments to the Notaries Rules, 1956 which came into force on 1.3.2009, an application for appointment of a Notary that was pending on that date can be disposed of only in accordance with the amended rules. It is evident from the counter affidavit filed in the instant case that the petitioner's application was not allowed as contended by the petitioner. The petitioner has no case that a notification appointing her as Notary was issued. She has also no case that a Certificate of Practice was issued. If that be so, as the petitioner's application had not been formally granted by the Government, I am of the opinion that her application cannot be considered and disposed of in accordance with the provisions of law that stood in force prior to 1.3.2009. 11. The stipulation in sub-section (3) of section 15 of the Notaries Act, 1956 also does not admit of such an interpretation. All that sub-section (3) of section 15 of the Act stipulates is that if anything is done under the rules before each House of the Parliament considers the rules and either approves it as it is or in the modified form or the Houses agree that rule should not be made, any action taken under the rule prior to such decision will not affect the validity of anything previously done. The said stipulation cannot in my opinion be relied on to contend that the memorial submitted by the petitioner for appointment as Notary Public in Karunagappilly Taluk which had not been finally disposed of and was pending as on 1.3.2009, is not governed by the Notaries Rules, 1956 as amended in the manner indicated above with effect from 1.3.2009. The petitioner's application has not so far been considered by the competent authority and she has not been interviewed by the interview board under the provisions of the amended rules which contemplate, the submission of an application through the concerned District Judge or the Presiding Officer of the Court or Tribunal where the applicant practises as an Advocate. The materials on record disclose that though respondents 3 and 4 had applied initially on 12.5.2006 and 11.11.2008, they later submitted applications through the Presiding Officer of the Courts where they are practising. The petitioner has no case that after the rules were amended she had submitted an application in terms of the amended rules for appointment as Notary Public. Therefore, the petitioner is not entitled to have her application filed on 20.2.2006, considered and disposed of, ignoring the stipulations in the amended rules which came into force with effect from 1.3.2009. The view that I have taken finds support in the decision of a Division Bench of this Court in W.A.No.1887 of 2009 wherein the Division Bench held that applications for appointment as Notary which were pending on 1.3.2009 can be disposed of only in accordance with the amended rules. For the reasons stated above, I hold that the reliefs prayed for by the petitioner cannot be granted. The writ petition fails and is accordingly dismissed. Needless to say, nothing contained in this judgment will stand in the way of the petitioner from submitting an appropriate application in accordance with the provisions of the Notaries Rules, 1956 as amended and having the application considered and disposed of in accordance with law. Sd/- P.N.RAVINDRAN JUDGE /TRUE COPY/ P.A. To JUDGE vpv |
