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Abdul Kadir Vs. Regional Passport Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberW.R. No. 21359 of 2003
Judge
Reported inI(2005)BC69; 2003(3)KLT1169
ActsNotaries Act, 1952 - Sections 3 and 8; ;Notaries Rules
AppellantAbdul Kadir
RespondentRegional Passport Officer
Appellant Advocate P.B. Sahasranaman,; K. Jagadeesh,; T.S. Harikumar an
Respondent Advocate M.L. Suresh Kumar, A.C.G.S.C.,; Government Pleader and;
DispositionPetition allowed
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - (b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security; (c) note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the..........by two prominent inhabitants of the local area within which the applicant intends to practice as a notary. rule 7 which provides for processing and recommendation of application also mentions about the place whether the applicant ordinarily resides in the area in which he proposes to practice as a notary. rule 8(1) provides that on receipt of the report of the competent authority, the appropriate government shall consider the report and shall appoint the notary in respect of the whole of the area to which it relates or allow the application in respect of any part of the area to which it relates. therefore an application for appointment of a notary has to be made with reference to the area where the notary proposes to practice and the eligibility of the notary for appointment also is.....
Judgment:

C.N. Ramachandran Nair, J.

1. The petitioners in these two Writ Petitions are Advocates appointed as Notaries under orders issued by the Government. While the petitioner in W.P.(C) 21975 of 2003 is authorised to practice in Revenue District of Ernakulam the petitioner in W.P.(C) 21359 of 2003 is authorised to practice within the Cochin Corporation area. The petitioners are challenging the letter produced as Annexure R1(a) in W.P.(C) 21359 of 2003 prohibiting Notaries from doing notarial work for persons living outside the jurisdiction assigned to the Notary under the certificate of practice issued to him. Another Notary who is authorised to practice in Ambalapuzha Taluk with office at Alappuzha has impleaded as additional respondent in W.P.(C) 21359 of 2003 and opposed the Writ Petition. The immediate provocation to file these petitions is the insistence of the Passport Officer for notarisation of documents produced before him subject to the Government Order and press release referred above. I heard both counsel appearing for the petitioners, Additional Central Government Standing Counsel appearing for the Passport Officer, the Government Pleader for the State and the counsel appearing for the additional respondent.

2. The petitioners' contention is that though Notaries appointed only for part of the country or for part of the State, under Section 3 of the Notaries Act 1952 limits only their jurisdiction of functioning but does not affect their right to render service to any client approaching them but living outside the territorial limits of the Notary. According to petitioners Section 8 of the Act does not impose restriction in regard to any client but it only says that every Notary should function within the territory within which he is allowed to function. The counsel appearing for the additional respondent submitted that even though specific provision is not there, the intention of the Legislature in providing for appointment of Notaries for a particular area only contemplates the Notary extending the service to residents of that area. The learned Government Pleader supported the letter of the Government submitting that the order should not be taken to be restriction but is issued as the measure to maintain discipline among the Notaries and to ensure that a Notary renders service in the area allotted to him. While the letter of the Law Secretary is consistent with the Act and Rules, I do not think the contents of the press release is tenable.

3. Section 3 of the Act states that the Central Government, for the whole or any part of India, and State Government, for the whole or any part of the State, may appoint as notaries and legal practitioners or other persons who possess such qualifications as may be prescribed. Rule 4(d) of the Notaries Rules, 1956 provides for making of application for appointment as Notary. It provides that the memorial of a person referred to in Clause (a) of Rule 3 shall be signed by the applicant and shall be counter signed by two prominent inhabitants of the local area within which the applicant intends to practice as a Notary. Rule 7 which provides for processing and recommendation of application also mentions about the place whether the applicant ordinarily resides in the area in which he proposes to practice as a Notary. Rule 8(1) provides that on receipt of the report of the competent authority, the appropriate Government shall consider the report and shall appoint the Notary in respect of the whole of the area to which it relates or allow the application in respect of any part of the area to which it relates. Therefore an application for appointment of a Notary has to be made with reference to the area where the Notary proposes to practice and the eligibility of the Notary for appointment also is considered with reference to that particular area. In fact Clauses (a) and (b) of Rule 8(1) provide for appointment of Notary for the whole area or part of the area to which the application relates. In other words the application made for appointment of a Notary is for a particular area and is granted for the whole of that area or in respect of any part of such area to which it relates. Rule 8A gives right to the Notary to apply for extension of the area granted to him and it is open to the Government to grant extension of area of practice of the Notary. The certificate of practice is issued under Form II-B. Rule 15 provides that every Notary shall have an office within the area mentioned in the certificate issued to him under Rule 8 and he shall exhibit it in a conspicuous place there at a board showing his name and his designation as a Notary. The Notaries appointed under the Rules are bound by certain discipline in regard to maintenance of registers, filing of returns etc. which are not relevant for the purpose of this case.

4. From the above it is clear that the Notaries are appointed for a particular area and such appointments are made depending on the requirements of the area. When a Notary is appointed for an area he is also bound to maintain office within the area and function therefrom. The question is whether such a restriction of area of operation of a Notary affects the rights of the customers living in other areas availing the services of the Notary by going to his office. There is nothing in the Notaries Act or Rules making it mandatory that the customers who want to avail any notarial service should get it done from the Notary within whose jurisdiction he reside or works. The pattern of notarisation of a document if required has to be prescribed by the authority demanding notarisation for acceptability of any document and in the absence of any. such restriction notarisation by any Notary in India is sufficient. There is nothing in the Notaries Act or Rules requiring that the person who produces the document for notarisation before the Notary should be a resident of the area where the Notary is authorised to practice. In this context it is pertinent to note the functions of the Notary which are contained in Section 8 of the Notaries Act which are as follows:-

'(a) verify, authenticate, certify or attest the execution of any instrument;

(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;

(c) note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act (XXVI of 1881) or serve notice of such note or protest;

(d) note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters;

(e) administer oath to, or take affidavit from, any person;

(f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents;

(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;

(h) translate and verify the translation of, any document from, one language into another;

(ha) act as a commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;

(hb) act as an arbitrator, mediator or concilator, if so required;

(i) any other act which may be prescribed'.

Apart from the above Section, Rule 11(8) of the Notaries Rules provides that a Notary may

(1) draw, attest or certify documents under his official seal including conveyance of properties;

(2) note and certify the general transactions relating to negotiable instruments;

(3) prepare a will or other testamentary documents; and

(4) prepare and take affidavits for various purposes for this notarial acts.

From the above provisions of the Act and Rules, I do not find any restriction or prohibition on the Notary doing any work or rendering any service to any person residing outside the area where such Notary is authorised to practice under the certificate issued to him. The restriction imposed by the Government in the Press Release virtually is a restriction on the client from availing the service of a Notary at any place or from a Notary of his choice. It is quite possible that a person may need the service of a Notary outside the place where he ordinarily resides. The statute does not impose any restriction on the right of a person in taking the service of a Notary of his choice. In fact Notaries are generally attesting affidavits, certifying true copies, attesting translated copies etc. In the case of affidavit the Notary has to certify personal knowledge of the applicant or otherwise he needs introduction which is statutorily recognised. Therefore I do not find anything wrong in the party approaching a Notary known to him for availing his service wherever such Notary is. Moreover a Notary appointed in a place may not be available when a client needs notarial service or if a Notary refuses to render service for want of identification or any other reason, the client is absolutely free to avail service from another Notary and the statute does not bar it. In fact non-availability of a Notary in a station should not render it impossible for a client to get the service of a Notary. He should be free to approach any other Notary located in another place and therefore I find the Government's press release restricting the notarial work only to clients residing in the area where the Notary is allowed to practice is not permissible under the Act or Rules. The argument of the Government Pleader that there is misuse of authority by the Notary is not a ground for sustaining the restrictions imposed by the Government which is not permissible under the statute. It is for the Government to take appropriate action against misuse of authority by any Notary. Notaries are governed by the provisions of the Act and Rules and the instructions issued by the Government. Therefore the discipline introduced by Section 3 of the Act read with Rule 8 and Form II-B letter of appointment restricting the area where the Notary is authorised to practice prohibits him from establishing office or a place of practice outside the area where he is allowed to practice. In other words he is bound to maintain his office within the area where he is authorised to practice and cannot set up an office outside the authorised area nor is allowed to function as a mobile unit outside the authorised area. However clients are free to go to any Notary of their choice or avail the service of Notary at any place at their convenience and the restriction imposed by the Government that a Notary appointed in a place should render service to clients residing in the area allotted to him is not authorised by the statute and hence I declare Annexure R1(a) letter No. 10106/H2/2001/Law dt. 4.7.2001 and the press release to that extent as arbitrary and beyond the powers of the Government.

The Writ Petitions are allowed as above.


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