1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.11.2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN WP(MD)No.7533 of 2011 and MP(MD)No.1 of 2011 N. Chidambarathanu Pillai, S/o. Nagalingam Pillai, Advocate, No.7, South Car Street, Vadiveeswaram, Nagercoil, Kanyakumari District. :Petitioner -Vs- The Secretary to Government, Law (Administration) Department, Government of Tamil Nadu, Fort. St. George, Chennai - 600 009. :Respondent Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for the records of the proceedings in G.O.Ms.No.94 dated 09.03.2011 on the file of the respondent and quash the same as the same is illegal, null and void and against the natural justice and consequently direct the respondent to issue the necessary order of renewal and to restore the name of the petitioner as Notary with effect from 05.12.2010. For Petitioner :Mr.N.Sivakumar For Respondent :Mr.R.Karthikeyan,Additional Government Pleader ORDER The petitioner has come up with the above writ petition challenging an order passed by the Government, removing his name from the Register of Notaries. 2.Heard Mr. N. Sivakumar, learned counsel for the petitioner and Mr. R Karthikeyan, learned Additional Government Pleader for the respondent. 3.There are no disputes on facts. The petitioner was appointed as a Notary in and throughout the Municipal area of Nagercoil for a period of five years with effect from 05.12.2000 by G.O.Ms.No.305 Law Department dated 05.12.2000. The Certificate of Practice was renewed for a further period of five years with effect from 05.12.2005 under G.O.Ms.No.27 Law Department dated 06.02.2006. The renewed term was to expire on 04.12.2010. 4.Under Rule 8-B of the Notaries Rules, 1956 (hereinafter referred to as "the Rules"), the petitioner was obliged to make an application for renewal, before three months immediately preceding the date of expiry of the period of validity. But, the petitioner submitted an application for renewal on 20.12.2000. There was, thus, a delay of just 16 days. 5.Holding the said small delay to be fatal, the Government passed the impugned order G.O.Ms.No.94 Law (Administration) Department dated 09.03.2011, removing the name of the petitioner from the Register of https://hcservices.ecourts.gov.in/hcservices/ 2 Notaries, in exercise of the powers conferred by Clause (f) of Section 10 of the Notaries Act, 1952. Challenging the said order, the petitioner is before this Court. 6.The Notaries Act, 1952 (hereinafter referred to as "the Act") does not prescribe any period for submitting an application for renewal of Certificate of Practice. Section 5(1) of the Act, enables a person, who intends to practise as a Notary, to apply to the government for appointing him as a Notary. Under Clause (b) of sub-section (1) of Section 5 of the Act, the Certificate of Practice issued by the Government shall be valid for a period of five years from the date on which the Certificate is issued Under sub-section (2) of Section 5 of the Act, the Government may renew the Certificate of Practice for a period of five years at a time. The time limit for submitting an application for renewal and the procedure to be followed for renewal are not prescribed in the Act. However, Rule making powers are conferred upon the Government under Section 15 of the Act. 7.In exercise of powers conferred by Section 15 of the Act, the Government had issued the Notaries Rules 1956. Rule 8 of the Rules speaks of Appointment of a Notary. Even the said Rule did not prescribe a time limit for renewal of the application. However, sub-rule (4) of Rule 8 of the Rules, which is in tune with Section 5(1)(b) of the Act stipulates that the Certificate of Practice will be valid for five years. 8.Rule 8-B of the Rules was inserted by an Amendment issued in G.S.R.686 (E) in No.SRO A-55/2007. The said Rule reads as follows:- "8B.Renewal of Certificate of Practice:- The Certificate of Practice issued under sub-rule(4) of Rule 8 may be renewed for a further period of five years on payment of prescribed fee. An application for renewal of Certificate of Practice shall be submitted to the appropriate Government before three months from the date of expiry of its period validity: Provided that the appropriate Government may, after considering the reasons stated in the application, relax the condition of submission of application for renewal of Certificate of Practice before the above specified period". 9.A reading of the above Rule shows that the prescription that an application for renewal of a Certificate of Practice should be submitted before three months was inserted only in the year 2007. But, the time limit prescribed for making an application, in terms of Rule 8-B of the Rules does not appear to be sacrosanct, which can never be altered. This is borne out by the Proviso to Rule 8-B of the Rules. The Proviso to Rule 8-B of the Rules makes it clear that the Government is entitled to relax the condition for submitting the application for renewal of Certificate of Practice, before the period specified in the Rule. In other words, the Government has the discretion to accept an application submitted at any time. The only condition would be that till a Certificate of renewal of Practice is issued by the Government, the concerned person may not be able to practise as a Notary. https://hcservices.ecourts.gov.in/hcservices/ 3 10.In other words, the prescription under Rule 8-B of the Rules is diluted to a great extent by the Proviso. Rule 8-B of the Rules is not a watertight compartment.The Proviso confers a discretion upon the Government It is not the case of the respondent that the case of the petitioner had come to any adverse notice. As a matter of fact, the power of the Government to remove the name of a person from the Register of Notaries flows out of Section 10 of the Act. The clause by which a person's name can be removed from the Register on the ground of non renewal of the Certificate of Practice was inserted only by an Amendment in 1999 by Act 36 of 1999. 11.Therefore, the failure of the petitioner to submit an application, three months before the date of expiry of the period of Certificate of Practice cannot be said to be fatal or something which can never be remedied. Considering the fact that the petitioner had no antecedent and considering the fact that the contingency stipulated in Clauses (a) to (e) of Section 10 of the Act have not arisen in the case of the petitioner, the respondents ought to have accepted the application of the petitioner and granted the renewal. 12.Therefore, this writ petition is allowed, the impugned order is set aside and the respondent is directed to consider the application of the petitioner in the light of the Proviso to Rule 8-B of the Rules and pass fresh orders, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected M.P.(MD)No.1 of 2011 is closed. Sd/- Assistant Registrar / TRUE COPY / Sub Assistant Registrar To: The Secretary to Government, Law (Administration) Department, Government of Tamil Nadu, Fort. St. George, Chennai - 600 009. +1CC to The Special Government Pleader. SR.No.42265. +1CC to Mr.N.Sivakumar, Advocate. SR.No.42404. Dpn/- RP/12.12.2011/3P/4C. W.P.(MD)No.7533 of 2011 and M.P.(MD)No.1 of 2011 30.11.2011 https://hcservices.ecourts.gov.in/hcservices/