S. Ramanarayanan Vs. the State of Tamil Nadu Rep. by Secretary to Government, Law Department and anr. - Court Judgment

Excerpt:
- orderjayasimha babu, j1. petitioner is a practising advocate. he was appointed by the state government as a notary under the notaries act 1952 on 25.10.1989. at the expiry of the period of three years from that date, his certificate of practice was renewed by a notification issued by the state government dated 27.1.1993. petitioner applied for further renewal before the expiry of three years from 27.1.1993. that application dated 13.12.1995 was filed 51 days after 25.10.1995. the rejection of that application and consequent removal of the petitioner from the list of notaries by the government's notification dated 27.8.1996 has been challenged by the petitioner in this petition.2. the reason for removal as set out in the notification is that petitioner had failed to apply for renewal, along with the fee therefore before the expiry of three years from 25.10.1995 and the explanation given by the petitioner for not applying before 25.10.1995 was not satisfactory.3. learned senior counsel for the petitioner contended that the impugned order is unsustainable. he contended that question of delay does not arise as neither the act nor the rules prescribe the time limit within which the application should be filed.4. learned counsel relied on two decisions of the high court of kerala a. gourishankar v. state, : air1991ker225 and state of kerala v.k.u. narayana poduval, : air1992ker152 . it was held therein that the words 'shall' and 'be entitled' in section 5(2) of the notaries act, 1952, had been deliberately used by the parliament to emphasise that there is no residuary discretion for the government at the time of renewal; that section 5(2) of the act is mandatory; that the renewal is automatic; and that at the government had no right to restrict the right of renewal only to two terms of three years each.5. the relevant statutory provisions require to be noticed. section 3 of the act confers powers on the state and central governments to appoint as notaries' ... any legal practitioners or other persons who possess such qualifications as may be prescribed.' rule 3 sets out the qualifications. rule 3 reads as under: 'qualifications for appointment as notary: - no person shall be eligible for appointment as a notary unless on the date of application for such appointment-(a) he is notary public appointed by the master of faculties in england,or(b) he has been (practising as) a legal practitioner for atleast ten years.6. section 5 of the act provides for register of notaries and renewal of their certificates of practice. that section reads as under:-section 5. entry of names in the register and issue or renewal; of certificate of practice, (i) every notary who intends to practice as such shall, on payment to the government appointing him of the prescribed fee, if any be entitled.(a) to have his name entered in the register maintained by that government under section 4 and(b) to a certificate authorising him to practice for a period of three years from the date on which the certificate is issued to him.(2) every such notary who wishes to continue to practice after the expiry of the period for which his certificate of practice has been issued under this section shall, on application made to the government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate of practice renewed for three years at a time.7. section 10 of the act provides for removal of notaries from the register. that section reads as under:-section 10. removal of notaries from register:- the government appointing any notary may be order, remove from the register maintained by it under section 4 the name of the notary, if he(a) makes a request to that effect; or(b) has not paid any prescribed fee required to be paid by him; or(c) is an undischarged insolvent; or(d) has been found, upon inquiry in the prescribed manner, to be quilty of such professional or other misconduct, as, in the opinion of the government render him unfit to practice as a notary.8. section 15 of the act confers power on the central government to frame rules to carry out the purposes of the act.9. under the scheme of the act, once a legal practitioner is selected and appointed as a notary, and such person has not ceased to be a legal practitioner, he is entitled to continue as a notary as long as he wants, subject to his applying for with the prescribed fee for renewal of his certificate of practice at the end of each three year period, and so long as he does not become an undischarged insolvent, and is not found on enquiry to be guilty of professional or other misconduct as in the opinion of the government, renders him unfit to practice as a notary.10. no period of limitation is set out in the act or rules for seeking renewal. in the absence of any such specification it must be held that a notary has a right to seek renewal within a reasonable time after the expiry of his certificate of practice, as there is nothing in the scheme of the act to indicate that the application for renewal must be made before the expiry of the certificate. the act does not fix the number of notaries for any given area, or provide for government inviting applications to fill up vacancies in the office of notaries. certificate of renewal even in cases where applications are filed before the expiry of period of three years, are issued only months after the expiry of the period.11. it is only where a notary's conduct indicates abandonment of his right of renewal, that government would be justified in refusing to renew the certificate. in the instant case, it cannot be said that the petitioner had shown any desire to abandon practice as a notary. the application for renewal made 51 days after the expiry of the certificate of practice with the explanation that papers had been entrusted to an assistant who turned out to be negligent and who left the services of the petitioner abruptly, does not indicate abandonment of practice. the fee prescribed had also been remitted on 14.12.1995. there were no adverse remarks regarding his conduct as a 'notary' or as a legal practioner. in these circumstances, the petitioner was entitled to have the certificate of practice renewed.12. the government was also in error in putting forth as a supplemental reason, nonpayment of the renewal fees, even then the renewal fee had been paid long before the date of the order. the government itself had not even taken the view that on the expiry of the earlier certificate of practice, he had ceased to be a notary. the government had included his name even in the gazette notification dated 29.1.1996 listing 'notaries appointed and practising in the beginning of the year 1996.' the petitioner's application for renewal was pending as on the date of treat notification and the renewal fee had also been paid.13. counsel for petitioner criticized the conduct of the government in seeking the opinion of the district judge on the application for renewal. such consultation by itself does not render the order illegal. it was open to the government to have sought his views, as he is required to be consulted before a person can be appointed as a notary.14. the writ petition is allowed and the impugned government order is quashed. respondents are directed to renew the petitioner's certificate of practice as a notary. the government shall issue such certificate within a period of eight weeks from the date of receipt of a copy of this order. no costs.15. in view of the final order having been passed in the writ petition, no separate orders are necessary in the w.m.p.s. and are closed.

Judgment:
ORDER

Jayasimha Babu, J

1. Petitioner is a practising Advocate. He was appointed by the State Government as a Notary under the Notaries Act 1952 on 25.10.1989. At the expiry of the period of three years from that date, his certificate of practice was renewed by a notification issued by the State Government dated 27.1.1993. Petitioner applied for further renewal before the expiry of three years from 27.1.1993. That application dated 13.12.1995 was filed 51 days after 25.10.1995. The rejection of that application and consequent removal of the petitioner from the list of Notaries by the Government's notification dated 27.8.1996 has been challenged by the petitioner in this petition.

2. The reason for removal as set out in the Notification is that petitioner had failed to apply for renewal, along with the Fee therefore before the expiry of three years from 25.10.1995 and the explanation given by the petitioner for not applying before 25.10.1995 was not satisfactory.

3. Learned Senior counsel for the petitioner contended that the impugned order is unsustainable. He contended that question of delay does not arise as neither the Act nor the rules prescribe the time limit within which the application should be filed.

4. Learned counsel relied on two decisions of the High Court of Kerala A. Gourishankar v. State, : AIR1991Ker225 and State of Kerala V.K.U. Narayana Poduval, : AIR1992Ker152 . It was held therein that the words 'Shall' and 'be entitled' in Section 5(2) of the Notaries Act, 1952, had been deliberately used by the Parliament to emphasise that there is no residuary discretion for the Government at the time of renewal; that Section 5(2) of the Act is mandatory; that the renewal is automatic; and that at the Government had no right to restrict the right of renewal only to two terms of three years each.

5. The relevant statutory provisions require to be noticed. Section 3 of the Act confers powers on the State and Central Governments to appoint as notaries' ... any legal practitioners or other persons who possess such qualifications as may be prescribed.' Rule 3 sets out the qualifications. Rule 3 reads as under: 'Qualifications for appointment as notary: - No person shall be eligible for appointment as a notary unless on the date of application for such appointment-

(a) he is notary public appointed by the master of Faculties in England,

or

(b) he has been (Practising as) a legal practitioner for atleast ten years.

6. Section 5 of the Act provides for Register of Notaries and renewal of their certificates of practice. That Section reads as under:-

Section 5. Entry of names in the Register and issue or renewal; of Certificate of practice, (i) Every notary who intends to practice as such shall, on payment to the Government appointing him of the prescribed fee, if any be entitled.

(a) to have his name entered in the Register maintained by that Government Under Section 4 and

(b) to a certificate authorising him to practice for a period of three years from the date on which the certificate is issued to him.

(2) Every such notary who wishes to continue to practice after the expiry of the period for which his certificate of practice has been issued under this section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate of practice renewed for three years at a time.

7. Section 10 of the Act provides for removal of notaries from the Register. That Section reads as under:-

Section 10. Removal of notaries from Register:- The Government appointing any notary may be order, remove from the Register maintained by it Under Section 4 the name of the notary, if he

(a) makes a request to that effect; or

(b) has not paid any prescribed fee required to be paid by him; or

(c) is an undischarged insolvent; or

(d) has been found, upon inquiry in the prescribed manner, to be quilty of such professional or other misconduct, as, in the opinion of the Government render him unfit to practice as a notary.

8. Section 15 of the Act confers power on the Central Government to frame rules to carry out the purposes of the Act.

9. Under the scheme of the Act, once a legal practitioner is selected and appointed as a Notary, and such person has not ceased to be a legal practitioner, he is entitled to continue as a notary as long as he wants, subject to his applying for with the prescribed fee for renewal of his certificate of practice at the end of each three year period, and so long as he does not become an undischarged insolvent, and is not found on enquiry to be guilty of professional or other misconduct as in the opinion of the Government, renders him unfit to practice as a Notary.

10. No period of limitation is set out in the Act or Rules for seeking renewal. In the absence of any such specification it must be held that a notary has a right to seek renewal within a reasonable time after the expiry of his certificate of practice, as there is nothing in the scheme of the Act to indicate that the application for renewal must be made before the expiry of the certificate. The Act does not fix the number of notaries for any given area, or provide for Government inviting applications to fill up vacancies in the office of Notaries. Certificate of renewal even in cases where applications are filed before the expiry of period of three years, are issued only months after the expiry of the period.

11. It is only where a Notary's conduct indicates abandonment of his right of renewal, that Government would be justified in refusing to renew the certificate. In the instant case, it cannot be said that the petitioner had shown any desire to abandon practice as a Notary. The application for renewal made 51 days after the expiry of the certificate of practice with the explanation that papers had been entrusted to an Assistant who turned out to be negligent and who left the services of the petitioner abruptly, does not indicate abandonment of practice. The fee prescribed had also been remitted on 14.12.1995. There were no adverse remarks regarding his conduct as a 'notary' or as a legal practioner. In these circumstances, the petitioner was entitled to have the certificate of practice renewed.

12. The Government was also in error in putting forth as a supplemental reason, nonpayment of the renewal fees, even then the renewal fee had been paid long before the date of the order. The Government itself had not even taken the view that on the expiry of the earlier certificate of practice, he had ceased to be a notary. The Government had included his name even in the Gazette Notification dated 29.1.1996 listing 'Notaries appointed and practising in the beginning of the year 1996.' The petitioner's application for renewal was pending as on the date of treat Notification and the renewal fee had also been paid.

13. Counsel for petitioner criticized the conduct of the Government in seeking the opinion of the District Judge on the application for renewal. Such consultation by itself does not render the order illegal. IT was open to the Government to have sought his views, as he is required to be consulted before a person can be appointed as a Notary.

14. The writ petition is allowed and the impugned Government order is quashed. Respondents are directed to renew the petitioner's certificate of practice as a Notary. The Government shall issue such certificate within a period of eight weeks from the date of receipt of a copy of this order. No costs.

15. In view of the final order having been passed in the writ petition, no separate orders are necessary in the W.M.P.s. and are closed.