P.C. Borooah, J.
1. The petitioners in these two Rules are Mr. Jagat Jiban Lahiri alias J. J. Lahiri and Mr. Gostha Behari Banerjee. Both are Solicitors and Advocates of this Hon'ble Court. They had been granted licences to practise as Notaries by the State of West Bengal under Section 3 of the Notaries Act, 1951 (hereinafter referred to as the Act). Both of them applied for renewal of their licences but the State Government refused to renew the licences. Hence these applications.
2. In the case of Mr. Lahiri an order was communicated to him by a letter dated 8-11-83, copy of which is Annexure 'C to his petition, and in the case of Mr. Gostha Behari Banerjee the relevant order is in a letter dated 20-12-83, copy of which is included in Annexure 'H' of his petition. In both these orders no reasons have been given by the Judicial Department of the Govt. of West Bengal as to why their licences were not being renewed.
3. 1 have heard Mr. Lahiri in person and Mr. Ashok Banerjee on behalf of Mr. Gostha Behari Banerjee. Mr. J. N. Haldar has opposed these Rules on behalf of the State of West Bengal.
4. According to Mr. Lahiri and Mr. Banerjee the right to get their licences renewed under Section 5(2) of the Act is a legal right and the State Government has no option in the matter but to renew such licences and by not doing so their fundamental rights to practise a trade or profession under Article 19(1)(g) of the Constitution has been violated. According to Mr. Halclar the licence granted to a Notary under Section 3 of the Act is a mere licence or a privilege and does not confer any legal right. Therefore, it is the sole discretion of the Government whether or not to renew a licence of a Notary under Section 5(2) of the Act. According to Mr. flaldar these licences have not been renewed as a policy decision has been taken by the State Government that no licence of a Notary shall be renewed if he crosses the age of 70 years. Mr. Haldar has produced before me a file of the Judicial Department wherein there is a noting of the Secretary concerned countersigned by the Hon'ble Minister wherein it has been stated that the licence of the Notary is not being renewed as he has crossed the age of 70 years.
5. Decisions have been referred to by both the parties but I shall refer to only those decisions which 1 consider necessary for the purpose of disposal of these Rules.
6. The qualification to be appointed as a Notary is laid down under the Notaries Rules, 1956. These Rules were passed by the Central Government under the powers conferred by Section 15 of the Act. Rule 3 of the Notaries Rules which lay down the qualifications for being appointed as a Notary reads as follows :
'Rule 3. No person shall be eligible for appointment as a notary unless on the date of the application for such appointment : --
(a) he is notary public appointed by the Master of Faculties in England, or
(b) the has been practising as a legal practitioner for al least ten years.'
17. The sections of the Act which are necessary for the instant purpose are Sections 3 and 5 which read as follows : --
'Section 3. Power to appoint notaries.-
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.
Entry of names in the Register and issue or renewal of certificates of practice.
(1) Every notary who intends to'practise as such shall, on payment to the Government appointing him of the prescribed fee, if any, he 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 practise 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 practise 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.'
8. A licence to practise as a Notary is granted under Section 3 of the Act. Both the petitioners obtained such licences. Both of them applied, for renewal under the provisions of Section 5(2) of the Act which has been quoted above.
9. Therefore, there is nothing in Section 5(2) of the Act by which the Government can withhold the licence of a Notary provided he has the requisite qualifications as laid down under Rule 3 of the Notaries Rules. There is no provision in the Notaries Rules, 1956 which lays down that a person who is otherwise qualified to be appointed as a Notary has ceased to be so qualified on his attaining the age of 70 years. If the State of West Bengal wishes to impose such a restriction, it can do so by a Legislation and not by any policy decision or any executive order which only finds place within the covers of a Government file. In this connection reference may be made to a decision of the Bombay High Court in the case of Lokash Chemical Works v. M.S. Mehta, Collector of Customs (Preventive), Bombay reported in 1981 ELT 235 (Bom), wherein it has been held :
'Again the executive instructions or directions issued under Article 73 of the Constitution can only operate in a field which is not covered by any legislation. The executive cannot issue any directions or instructions which will have the effect contrary to the one contemplated by properly enacted legislation.'
10. Therefore, Mr. Haldar's submission that the Government has a power under Article 162 to make such a policy decision, cannot be accepted in view of the express provisions in the Act and the Notaries Rules, 1956.
11. Mr. Banerjee has drawn my attention to a decision of the Lucknow Bench of the Allahabad High Court in the case of Kashi Prasad Saksena v. State of Uttar Pradesh, Lucknow, reported in : (1967)IILLJ588All . In this case the State of Uttar Pradesh had refused to renew the licence of a Notary against whom some proceedings were pending. The High Court in interpreting Section 5(2) of the Act made the following observations :
'From this provision it clearly follows that the petitioner-appellant had a legal right to get his certificate renewed even after 19th of Aug, 1965. Consequently it cannot be said that with the expiry of the petitioner's term on 19-8-1965, he had no longer any interest in the certificate. Inasmuch as the petitioner was entitled to renewal of his certificate even after 19th of Aug., 1965, he has a complete cause of action to maintain the present writ petition. So long as the order of removal of the petitioners' name from the register maintained under Section 4 of the Act and perpetually debarring him stands the petitioner cannot apply for renewal.'
12. Another Solicitor of this Court, viz., Shri Sukumar Basu, whose application for renewal to practise as a Notary was refused by the State Government, came up under Article 226 of the Constitution and obtained a Rule being Matter No. 372 of 1984. By a judgment delivered by me on April 12, 1984 the Rule was made absolute and the State Government was directed to renew Mr. Sukumar Basu's licence. This order was passed by consent of the parties and in this matter Mr. J. N. Haldar also appeared. It is Mr. Haldar's submission before me now that this order was passed when the policy decision as referred to by Mr. Haldar now was also there but Mr. Haldar contends that he wrongly agreed to the order being passed because then he was not aware of the fact that the right of a Notary to have a licence renewed was not a legal right but it was purely a privilege which lay in the hands of the Government.
13. Mr. Haldar has cited a decision of the Supreme Court in support of his submissions viz., Chingleput Bottlers v. Majestic Bottling Co. reported in : 3SCR190 , wherein the Supreme Court held that the grant of a liquor licence was purely discretionary and the High Court could not grant a Writ of Mandamus on the Commissioner of Excise to issue an excise licence to a particular party. It may be mentioned that according to the Excise Rules applicable to the State of Tamil Nadu, before the grant of an excise licence the consent of the State Government was essential.
14. This particular case is of no help to the respondents in view of the fact that the petitioners have a legal right under the Act and the Notaries Rules to have the licences renewed inasmuch as they possess the requisite qualifications and the disqualifications regarding their age has only been introduced by the State Government by a policy decision and not by means of a Statute. As such, I allow both these applications, make the Rules absolute and direct the respodnets to renew the licences of the petitioners under Section 5(2) of the Act as expeditiously as possible.
15. There will be no order as to costs.
Mr. Haldar orally prays for stay of operation of this order which is refused.
All parties to act on a signed copy of the operative portion of the judgment.