PRASHANT KUMAR Vs. STATE OF C G
LAWS(CHH)-2005-3-3
HIGH COURT OF CHHATTISGARH
Decided on March 24,2005

PRASHANT KUMAR Appellant
VERSUS
STATE OF CHHATTISGARH Respondents

JUDGEMENT

L.C.Bhadoo, J. - (1.) BY these Writ Petitions under Arts.226/227 of the Constitution of India, the petitioners have questioned the legality and propriety of the orders to refuse renewal of their certificates to practice as Notary on the basis of Government order dated 31st December, 2002. Brief facts leading to filing of these Writ Petitions are that the petitioners who are Advocates by profession practicing law in different parts of the State of Chhattisgarh were functioning as notaries public as they were appointed as such under the Notaries Act, 1952 (hereinafter referred to as 'the Act') by the erstwhile State of Madhya Pradesh. In the last, their renewal was refused by the State Government on the basis of its executive order dated 31st December, 2002, whereby looking to the number of Notary posts fixed for the State it has been decided that under S.5 of the Act, the certificate to practice as Notary Public is to be renewed once in order to give chance to more number of Advocates to practice as Notary Public. However, If any certificate has been renewed prior to this date, will remain effective till the date of expiry.
(2.) AS all these Writ Petitions involve same question of law, therefore, they are being disposed off by this common order. Petitioner Chandra Prakash Sharma (W.P. No. 3247/2003) was appointed as Notary Public vide order 2.1.1989 for Raipur Civil District, his certificate was renewed from time to time, and lastly it was renewed up to 1/1/2001, thereafter, his application for renewal remained pending for two years. Petitioner Prashant Kumar Thakur (W.P. No.1171/2003) was appointed as Notary Public in the year 1993 for Kondagaon, District: Bastar, thereafter his certificate was renewed from time to time, and lastly he applied for renewal on 8.8.2002, but the respondents refused to renew his certificate vide order dated 26.12.2002. Similarly, petitioner Anil Kumar Tiwari (W.P. No. 1600/ 2003) was appointed as Notary Public for District: Bastar, which was renewed from time to time up to 21.7.2002, and lastly he applied for renewal vide Annexure P- 4, but the same was rejected vide Annexure P-5. Petitioner Gopal Krishna Beriwal (W.P. No.494/2003) was appointed as Notary Public for District Raigarh on 10.11.1978, thereafter his certificate was renewed from time to time up to 9.11.2002, and he applied for renewal on 17.10.2002, which was refused on 10.1.2003. Petitioner Sylvester Toppo (W.P. No. 1894/ 2003) was appointed as Notary Public in the year 1985 for Dharam Raigarh, District: Raigarh, thereafter, his certificate was renewed from time to time, and lastly it was refused on 26.5.2003. Petitioner Madan Lal Gupta (W.P. No. 510/2003) was appointed as Notary Public on 30.5.1992 and his certificate was renewed from time to time up to 29.5.2001, thereafter, his renewal was refused by order dated 23.12.2002. Petitioner Rajkumar (W.P. No 624/2003) was appointed as Notary Public for Janjgir, District: Janjgir, Champa, in the year 1985, his certificate was renewed from time to time, and lastly the renewal was refused by order dated 10.1.2003. The question, which arises for consideration of this Court in these Writ Petitions, is that whether the State Government was entitled to issue order dated 31st December, 2002 under the amended provisions of sub-s.(2) of S.5 of the Act, whereby all the legal practitioners have been disentitled to renew their certificates after once. Learned Counsel for the petitioners argued, it is true that vide amending Act No. 36 of 1999 the word 'shall' has been replaced by the word 'may' in sub-ss. (1) and (2) of S.5 of the Act. But this word 'may' does not give absolute right to the State Government to issue the impugned order taking a decision that after issuance of this order the certificate of Notary Public will be renewed only once and not thereafter so as to adjust more and more practicing lawyers by appointing them as Notary Public looking to the fixed number of posts available. The said decision is arbitrary, irrational and amounts to fetter on the discretion of the State, and against the public interest. The law does not recognize fetter on the discretion. On the other hand, learned Advocate General argued that prior to the amendment in the year 1999, the word 'shall' was there in sub-ss.(1) and (2) of S.5 of the Act, therefore, the Central and State Governments had no authority to refuse to renew the certificate, but thereafter, the Central Government in its wisdom took a policy decision to increase the period of renewal from 3 years to 5 years, and also replaced the word 'may' in place of the word 'shall' in order to rationalize the procedure for renewal of the certificate of practice, and the State Government issued the impugned order that an Advocate once appointed as Notary Public became entitled to practice as Notary Public for ten years and that period was considered sufficient. Considering that period sufficient for an Advocate to practice as Notary Public, and in order to accommodate and give chance to more and more lawyers, order dated 31st December, 2002 was issued. This cannot in any way be termed as fetter on the discretion of the Government. He further argued that the said policy decision has reasonable nexus with the object of the Act. The State Government has taken a policy decision to classify a category of Advocates who become disentitled for renewal of certificate after practicing as Notary Public for ten years. For this view, he relied upon the decision of a Constitution Bench judgment of the Apex Court in Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh & Ors., (1974) 1 SCC 534. Ultimately, learned Advocate General argued that the petitioners have not challenged the policy decision, therefore, on this ground also the petitioners petitions fail.
(3.) AS far as the last submission made by learned Advocate General is concerned, perusal of W.P. No. 3247/2003 reveals that the petitioner has questioned the legality and correctness of the impugned order dated 31.12.2002 on the ground of unreasonableness, and that it amounts to enmasse refusal. The refusal to renew the certificate of notary is arbitrary. In para 5.8. of W.P. No. 3247/2003 it has also been mentioned that action of the State is wholly arbitrary and cannot be sustained in law. Therefore, in this Writ Petition, the policy decision has been challenged being arbitrary. Of course, in other petitions specifically this ground has not been raised, but to my mind, if it is held to be arbitrary, unjust and irrational in this Writ Petition, then it will apply to all cases. In order to appreciate the arguments advanced by learned Counsel for the parties, it would be profitable to have a look on the background of relevant provisions of the Act. As per the original Act, in sub-ss. (1) and (2) of S.5 the word 'shall' was there which has been replaced by the word 'may' vide amending Act No. 36 of 1999. A comparative table of unamended and amended provisions of the Act would show the correct picture. (a) In sub-s.(1) of S.5: Old New Every notary who intends to practice as suchEvery notary who intends to practice as such may, shall on payment to the Government appointingon payment to the Government appointing him of the him of the prescribed fee, if any, be entitled.prescribed fee, if any, be entitled. (b) In S.5 (1) (b) : OldNew To a certificate authorizing him to practice To a certificate authorizing him to for a period of three years from the date on practice for a period of five years Which the certificate issued to him.from the date on which the certificate issued to h im. (c) Sub-s.(2) substituted: Old New Every such notary who wishes to The Government appointing the notary, continue to practice after the expiry may, on receipt of an application and the of the period for which his certificate prescribed fee renew the certificate of of practice has been issued under thispractice of any notary for a period of section shall on application made to five years at a time. 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. S.2(c) of the Act defines, "legal practitioner" means an advocate entered in any roll under the provisions of the Advocates Act, 1961, S.2(d) defines "notary" means a person appointed as such under this Act, S.3 envisages that, "the Central Government, for the whole or any part of India, and any State Government, for the whole or any part of the State, may appoint as notaries any legal practitioners or other persons who possess such qualifications as may be prescribed". S.4 deals with the maintenance of registers by the Central and State Government and to make relevant entries as envisaged in the Act about the person who has been appointed as Notary Public. ;


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