Rajendra Kumar vs Prabhu Ram Bana

P.C. Jain, J.—These two revision petitions stem from the same appellate order, dated November 16, 1995 passed by the learned Addl. District Judge, Ratangarh, whereby the appeal of the plaintiff Rajendra Kumar against the order of the trial court dated 21st April, 1995 dismissing the application filed under order XXXIX Rules 1 and 2, Code of Civil Procedure, was partly allowed. Hence both these petitions are being disposed by this common judgment.

The relevant facts are as follows: Mr. Prabhoo Ram (hereinafter ''the petitioner'') was appointed a Notary pursuant to the provisions of the Notary Act, 1952 (for short ''the Act'') and the Notary Rules (''the Rules'' hereinafter) by the State Government by order dated 9th December, 1987, to practice as such in Doongargarh, District-Churu for a period of three years from 3.12.1987. A certificate u/s 5 of the Act was also issued in his favour. It has been stated that the area of practice of the petitioner was extended under Rule 8-A of the Rules by the State Government by order dated 22.8.1988 and he was authorised to practice throughout the District of Churu. It is also contended that the petitioner deposited fee of Rs. 100/- on 4.12.1990 for renewal of the certificate of Notary for another three years and also submitted an application for this purpose to the Secretary (JD), Government of Rajasthan, Jaipur on 29.11.1990.

It appears that certain complaints of mis-conduct were lodged against the petitioner to the State Government. An enquiry was conducted in accordance with the provisions of Rule 13 of the Rules and after considering the enquiry report, the State Government passed an order on 22.7.1992 under Sub-rule 12(b) of Rule 13 of the Rules, cancelling the above certificate of the petitioner, from the date of the publication of such notification in the official Gazette.

Aggrieved by the above order of the State Government, the petitioner filed a writ petition (No. 5608/92) before this court and on the stay application, this Court granted an interim order restraining the State Government from publishing the notification in respect of the order dated 22.7.1992 relating to the petitioner in the official Gazette. It was also submitted that the above writ petition is still pending and the interim order of this Court still subsists.

It is also not in dispute that Rajendra Kumar (hereinafter ''the non-petitioner'') was also appointed a District Notary under the provisions of the above Act and has been issued a certificate u/s 5 of the Act to practice as Notary at Ratangarh. It was alleged that the petitioner attested some documents on 15.4.1993 and 31.3.1994 as a Notary at Ratangarh. The non-petitioner felt aggrieved and filed a civil suit in the court of learned Civil Judge (Jr. Division), Ratangarh for permanent injunction against the petitioner to restrain him from practising as Notary at Ratangarh or any other place without the certificate issued u/s 5 of the Act. The non-petitioner also filed an application for temporary injunction seeking the above relief. The trial court dismissed the application filed by the non-petitioner under Order XXXIX Rules 1 and 2, CPC by his order dated 21.4.1995.

The non-petitioner preferred an appeal against the order dated 21st April, 1995 before the learned District Judge, Ratangarh and the matter came up for disposal before the learned Addl. District Judge, Ratangarh. The learned appellate court allowed the appeal of the non-petitioner partly and restrained the petitioner from practising at Ratangarh but he was not restrained from practising as Notary.

Against the appeallate order dated November 16, 1995, the non-petitioner (Rajendra Kumar) filed the Revision Petition No. 927/95 and petitioner (Prabhoo Ram) has preferred the Revision petition No. 918/95 before this Court.

I have heard learned counsel for both the parties. Learned counsel appearing on behalf of the non-petitioner (Rajendra Kumar) has assailed the order of the learned appellate court by which the learned appellate court did not restrain the petitioner from practising as Notary, on the ground that the learned appellate court misconstrued the provisions of Sections 5, 6 and 9 of the Act. He contended that after the order passed by the State Government dated 22.7.1987 cancelling the certificate of Notary of the petitioner, the above certificate was not renewed by the State Government u/s 5(2) of the Act. The obvious consequence of withholding renewal of the certificate is that the petitioner has forefeited of his right to practice as a Notary. Section 9 of the Act provides that no person shall practice as Notary and do any notarial act under the official seal of Notary unless he holds a certificate of practice in force issued to him u/s 5 of the Act. Since the renewal of the certificate was impliedly refused to the petitioner, on account of his being found guilty of mis-conduct, the petitioner was not entitled to continue to practice as Notary. The learned counsel further contended that though the publication of the above notification has been stayed but the fact remains that the petitioner has been found guilty of mis-conduct as a result of an enquiry conducted under the provisions of Rule 13 of the Rules. Only the publication of the notification in the Official Gazette has been restrained. However, since the certificate of the petitioner was not re-newed u/s 5(2) of the Act, his name did not find place in the annual list of Notaries published by the State Government u/s 6 of the Act.

8A. It was also submitted by the learned counsel for the non-petitioner that the petitioner did not file the original receipt evidencing the payment of re-newal fee for the above certificate. The learned trial court, according to learned counsel, thus fell into an error in acting upon the photostat copy of the receipt produced by the petitioner to substantiate the fact.

The learned counsel appearing on behalf of the petitioner submitted that the order passed by learned trial court dismissing the application of the non-petitioner was in accordance with law. The learned appellate court has committed a grave jurisdictional error while holding that under R. 15 of the Rules, one can only discharge his functions as Notary while sitting in the office declared by him. In other words, he restrained the petitioner from practising outside his office. According to learned counsel, the learned appellate judge totally misconstrued while interpreting the provisions of Rule 15 of the Rules. The learned counsel submitted that the certificate issued in favour of the petitioner authorises him to function as a Notary and discharge notarial functions in whole District of Churu. The territorial jurisdiction so assigned under the Act cannot be curtailed by Rule 15 of the Rules. The learned Addl. District Judge was, therefore, totally erroneous in putting a very narrow construction on Rule 15. In this connection, the learned counsel invited my attention towards the note appended to Rule 10 of the Rules, which prescribes for travelling allowance in respect of any journey under taken by a Notary in the course of discharge of his Notarial functions. The Legislature, therefore, presupposed that a Notary can go to any place within the territory assigned to him in order to discharge his Notarial functions. Assignment of territorial jurisdiction to a Notary implies that the Notary would undertake journey in the course of performance of his duties as such.

Regarding re-newal of the certificate, the contention of the learned counsel for the petitioner is that the provisions of Section 5(2) of the Act do not intend to confer any discretion on the Government at the time a renewal application is made by a Notary. The only obligation under the Act upon the Notary is to deposit the renewa-fee within time and make a formal request for renewal of the certificate. The Act even does not prescribe any particular format of such application. It is, thus, clear that if the petitioner deposited the requisite fee within time seeking renewal of his certificate of Notary alongwith an application making formal request, the State Government was bound to re-new the certificate. The renewal, after deposit of the renewal fee within time, is automatic, in accordance with the Rules. The State government cannot with-hold renewal except when the Notary is removed.

Regarding the order of removal passed by the State Government on 22.7.1987, his submission was that the above order could not be carried out in view of the interim directions of this Court in the writ petition moved by the petitioner, restraining the Government from publishing the same in the Official Gazette. He further submitted that in the aforesaid order itself, the State Governments has clearly stated that the order will take effect from the date of its publication in the Official Gazette. Hence, the publication of the aforesaid order in the Official Gazette is a sine quo non for removal of the petitioner from the office of a Notary. In support of his contention, the learned counsel placed reliance on the decision of Kerala High Court In State of Kerala etc. v. K.U. Naraina Poduwal, reported in AIR 1992 Ker 153

I have considered the rival contentions and persued the relevant provisions of the Act and the Rules. It is not disputed before me that the petitioner was appointed as Notary u/s 5 of the Act. Regarding renewal of his certificate of Notary, the petitioner filed a copy of the challan as also the application, to show that he had deposited the requisite re-newal fee in the Government treasury and had also submitted an application to the Secretary (JD), Government of Rajasthan, Jaipur. I, therefore, do not find any force in the contention of the learned counsel for the non-petitioner that the courts-below have committed any jurisdictional error in relying on these documents for accepting the fact that the petitioner has submitted an application for renewal and also deposited the requisite renewal fee within time.

Regarding the procedure prescribed for renewal, the provisions of Section 5 of the Act may be looked into, which read as follows:

Entry of names in the Register and issue or renewal of certificate of practice-(1) Every notary who intends to practice as such shall, on payment to Government appointing him of the prescribed fee, if any, be entitled-

a. to have his name entered in the Register maintained by that Government u/s 4, and

b. to a certificate authorising pratise for a period of three years, from the date on which the certificate is issued to him.

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 prescribed fee, if any, be entitled to have his certificate of practice renewed for three years at a time.

A persual of Sub-section (2) of Section 5 of the Act, quoted above, shows that Section 5(2) of the Act is mandatory and the right of renewal is automatic and there is no discretion vested in the Government to restrict such right of a Notary. Under different legislative enactments different procedures have been prescribed for renewal of a licence or permit. The language of Section 5(2) of the Act is very explicit and it leaves no room for any doubt and shows that as soon as a Notary applies Jot renewal of his certificate, his only obligation is to deposit the renewal-fee and thereafter he would be assured of renewal, which is automatic and the Government has got no say in the matter at all. The legislative intentment appears to favour uninterrupted functioning of a Notary so that the concerned persons requiring notarial functions from a Notary may not suffer in ease the renewal certificate is not issued before the expiry of the term of previous certificate.

A Division Bench of Kerala High Court in K.U. Narayana''s case (supra) closely scrutinised the language of Section 5(2) and particularly interpreted the word "shall" and the words "be entitled" occuring in Section 5(2) and observed:

The Parliament deliberately included the word ''shall'' and the words ''be entitled'' in Section 5(2) and in view of the said language it is difficult to say that there is any residuary discretion vested in the Government at the time of renewal of an application filed by a Notary. Section 5(2) is mandatory and the right of renewal is automatic and there is no discretion vested in the Government to restrict the right only to two renewals.

Hence, in the ordinary course, the petitioner after depositing the requisite renewal-fee became entitled to renewal of his certificate u/s 5(2) of the Act.

Now, I have to deal with the order passed by the State Government on 22.7.1992 by which the State Government decided to do away with the certificate of the petitioner and an order purporting to be under Sub-rule 12(b) of Rule 13 of the Rules was issued. As it has been stated above, the publication of the above order in the Official Gazette was stayed by this Court and the above interim order is still in force. A perusal of the order dated 22.7.1992 itself shows that it has been made to be effective from the date it is published in the Official Gazette under Sub-rule (13) of Rule 13 of the Rules. Hence, after the stay of the publication of the notification in respect of the order dated 22.7.1992 in the Official Gazette, the order of removal qua the petitioner stood in abeyance.

In view of this, I do not find any force in contention of the learned counsel for the non-petitioner about effect of the order dated 22.7.1992 and it cannot be inferred that the State Government can deemed to have denied that renewal of certificate of the petitioner. Even if the renewal is not ordered, the renewal will take effect because the petitioner has proved to have deposited the requisite fee within time and thereafter the renewal is automatic. Hence, if the name of the petitioner did not appear in the annual list published by the State Government u/s 6 of the Act, it is of no consequence. When it is held that the licence shall be deemed to have been renewed. The provisions of Section 9 of the Act do not constitute any bar.

The interpretation of Rule 15 of the Rules made by the learned appellate court is totally erroneous. When the Notary is authorised to function as such in the area assigned to him by the State Government he cannot be restrained from discharging his notarial functions except from his office. The establishment of an office of a Notary within the area mentioned in the certificate is intended for the convenience of the public so that they can identify the office of the Notary. Its only purpose is to give a notice to the public. It would lead to very absurd consequences if it is held that a Notary can only discharge his notrarial functions while sitting in his office while his area has been prescribed to be the whole of the District. That is why in Rule 10 while prescribing the fee payable to a Notary, a note has been appended which deals with the travelling allowance payable to a Notary in addition to his professional fee. A Notary can, therefore, travel any where in his area and discharge his notarial functions.

For the above reasons, I dismiss the Revision Petition No. 927/95 filed by the nonpetitioner Rajendra Kumar and allow that of Prabhoo Ram (Revision Petition No. 918/95). The order passed by the trial court dated 21st April, 1995 is here restored. Costs made easy.