'UH^' Sl'!V,.'^"RV?',W^'ss;^!fW 0^ IN THE HON'BLE HIGH COURT OFCHHATTISGARH AT Btl-ASPUR WritDetitionno. -s 10 72003 PETITION .^y lan Lal Gupta s/o shri Ramkishan ipta, aged about 47yrs, residentof iear StateBa.Dk ofIndia, Rest House Road, Post- Pendra Road»Distt. - Bi]aspHr(C.&). VERSUS y 0»^ RESPONDENTS- roughPrmcipai Secretary iawGovemmenf ofCUhattisgarli, Raipur(C.G.) 2) District&SessionJudge Bilaspur/Competent Authority imder Notary Rules, District Bilaspur, G.G. 3) Assistant Secretary State of Chliattisgaril- Department ofLaw ofChhattisgarl WRIT PETITIONBNDERARTIGLE 226/227 CONSTn'C'riONOFMDIA.; m BSIl ea :,ws •p-^' ^^ > ( t ^ HIGH COURT OF JUDICATURE AT BILASPUR. CHHAm«3ARH Writ Petition No.3247 of 2003 Chandra Prakash Sharma - Versus - State ofChhattisgarh and another Writ Petition No.1171 of 2003 Prashant Kumar Thakur - Versus - Sate ofChhattisgarh andtwo othws Writ Petition No.1600 of 2003 Anil Kumar Tiwari -Versus- State ofChhaffisgarh and another Writ Petition No.494 of 2003 Gopal Krishna Beriwat - Versus - State ofChhattisgarh and another Writ Petition No.1884 of 2003 Sylvester Toppo - Versus - State ofChhattisgarh and another Writ Petition No.510 of 2003 Madan Lal Gupta - Versus - State ofChhattisgarh andtwo others AND Writ Petition No.624 of 2003 Rajkumar - Versus - State of Chhattisgarh and another ^(1 1 POST FOR ORDER ON 24 MARCH, 2005 iHADOO L.C.B»J ludge HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH ^ Writ Petition No.3247 of 2003 Chandra Prakash Sharma - Versus - State of Chhattisgarh and another Writ Petition No.1171 of 2003 Prashant Kumar Thakur -Vesus- State of Chhattisgarh and two others Writ Petition No.1800 of 2003 Anil Kumar Tiwari - Versus - State of Chhattisgarh and another Writ Petition No.494 of 2003 Gopal Krishna Beriwat - Versus - State of Chhattisgarh and another Writ Petition No.1894 of 2003 Sylvester Toppo -Versus- State of Chhattisgarh and another Writ Petition No.510 of 2003 Madan Lal Gupta - Versus - State of Chhattisgarh and two others AND Writ Petition No.624 of 2003 Rajkumar - Versys - State of Chhattisgarh and another fe --", Page2ofl7 Present: - Mr. Y.C. Shanna, Advocate: ^ For the petitioners in W.P.Nos. 3247/2003and1171/2003. Mr. Prashant Jayaswal, Sr. Advocate For the petitioner in W.P.No.1600/2003. with Wr. Ali Asgar, Advocate.: Mr. Rahul Jha, Advocate: For the petitionersin W.P.Nos.494/2003 and 1894/2003. Nlrs. Renu Kochar, Advocate: For the petitioner in W.P.No.510/2003. None appears on behalfofthe petitioner in W.P.No.624/2003. Mr. Ravish Chandra Agrawal, A.G. with 'Mr. Pramod Kumar Verma, Addl. A.G. and Mr. Symesh Bajaj, Dy. G.A.: Forthe State/respondents. ORDER (Passed on 24th March, 2005) L.C. BHADOO, J. 1, By these writ petitions under Article 226/227 of the Constitution of India, the petitioners have questioned the legality and propriety ofthe orders to refuse renewal of their certificates to practice as Notary on the basis of Government order dated 31st December, 2002. 2. Brief facts leading to filing of these writ petitions are that the petitioners who are Advocates by profession practicing law in different parts ofthe 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 31 December, 2002, whereby looking to the number of Notary posts fixed for the State it has been decided that under Section 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 ofexpiry. 3. As all these writ petitions involve same question of law, therefore, they are being disposed of by this common order. 4. 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 ^•t' Page3ofl7 renewed from time to time, and lastly it was renewed up to 1-1-2001, _$2— 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, wtiich was renewed from time to time up to 21-7-2002, and lastly he applied for renewal vjde 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 certified 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 Dharamjaigarh, 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. 5. The question, which arises for consideration of this Court in these writ petitions, isthat whether the State Government was entitled to issue order dated 31 December, 2002 under the amended provisions of sub-section (2) of Section 5 of the Act, whereby all the legal practitioners have been disentitled to renewtheir certificates after once. 6. 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- sections (1) & (2) of Section 5 ofthe Act. But this word 'may' does not give absolute right to the State Government to issue the impugned order taking a decision that aflter 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 ofposts availabte. The said decision is arbitrary, irrational and r Page4ofl7 amounts to fetter on the discretion of the State, and against the public interest. The law does not reeognize fetter on the discretion. 7. On the other hand, leamed Advocate General argued that prior to the amendment in the year 1999, the word 'shall' was there in sub-sections (1) & (2) of Section 5 of the Act, therefore, the Central and State Govemments 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 Govemment 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 fbr an Advocate to practice as Notary Public, and in order to accommodate and give chance to more and more lawyers, order dated 31 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 disentitle.d 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 reported in (1974) 1 SCC S34 (Shri Rama Sugar Industries Ltd. vs. State of Andhra Pradesh and others). Ultimately, learned Advocate General argued that the petitioners have not challenged the policy decision, therefore, on this ground also the petitioners )etitions fail. r3, 8AAs far as the last submission made by learned Advocate General is concerned, perusat of W.P.No.3247/2003 reveals that the petitioner has questioned the legatity and correctness ofthe impugned order dated 31-12- 2002 onthe ground of unreasonableness, and that it amounts to enmasse refusal. The refusat 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 challenge 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 allcases. K Page5ofl7 v^ 9. In order to appreciate the arguments advanced by leamed counsel for the parties, it would be profltable to have a look on the background of retevant provisions of the Act. As per the original Act, in sub-sections (1) & (2) of Section 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 un- amended and amended provisions of the Act would show the correct picture. a/ In sub-section (1) of Section 5 Old Everynotarywhointendsto Every notary practice as such shall on practice payment to the Government appointing him ofthe prescribed fee, ifany, be entitled - b/ New who intends to as such may, on payment to the Government appointing him of the prescribed fee, ifany, be entitled- tn Section 5 (1) (b) Old New To a certificate authorizing To a certificate authorizing him to him to practice for a period practice for a period offlveyears of three years from the from the date on which the date on which the certificate certificate issued to him. issued to him. c/ Sub-Section (2) substituted New The Government appointing the notary, may, on receipt of an application and the prescribed fee renew the certilicate of practice of any notary for a period offlve years at a time. Old 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 Govemment appointing him and payment the prescribed fee, if any, be entitled to have his certilicate of practice renewed for three years at a time. 10.8ection 2 (c) of the Act defines, "tegal practitioner" means an advocate entered in any roll under the provisions of the Advocates Act, 1961. Section 2 (d) defines' "notary" means a person appointed as such under this Act. Section 3 envisages that, "the Central Govemment, 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 legat practitioners or other persons who possess such qualifications as may be prescribed". Section 4 deals with the maintenance of registers by the Central and State Government, 1 J: 0^^ U 1/4. and to make relevant entries as envisaged in the Act about the person who has been appointed as Notary Public. 11. Section 5 of the Act envisages "Entry of names in the Register and issue or renewai of certificates of practice". Under the un-amended provisions the appointment was for three years and after the amendment it has been extended to five years and renewal is atso for five years. After the amendment particularly in sub-section (2), significant change has been inserted. In the otd Section there was a mandate that "under this section shall on application.to be made to the Government appointing him and payment the prescribed fee, if any, be entitled to have his certificate of practice renewed", vrfiereas, as per the new Section, "the Govemment appointing the notary, may, on receipt of an apptication and the prescribed fee renew the certificate of practice of any notary for a period offive years at a time" has been incorporated. By deleting the words 'shall' and 'be entitled', they have been replaced by the words 'may' and 'reneW. Therefore, automatic renewal and entitlement have been taken a\way by the amended Act No.36 of 1999. 12.Section 6 of the Act envisages "Annual pubtication of tists of notaries". Section 7 envisages about the "Seal of notaries". Section 8 envisages about the "Functions of notaries". Section 9 envisages "Bar of practice without certificate". Further, Section 10 envisages "Removal of names from Register" on the grounds (a) to (f) mentioned in the Section i.e. on the request of such person; or has not paid any prescribed fee required to be paid by him; or is an un-discharged insolvent; or has been found, upon inquiry in the prescribed manner, to be guitty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practice as a notary; or is convicted by any court for an offence involving moral turpitude; or does not get his certificate of practice renewed, Therefore, these are the grounds enumerated in Section 10 regarding removal of names of notary from the register. Section 14 is regarding "Reciprocal arrangements for recognition of notarial acts done by foreign notaries". Section 15 is about "Power to make rules", 13.Whereas, Rule 3 ofthe Notaries Rules, 1956 (hereinafter referred to as 'the Rules'), is about "Qualifications for appointment as a notary", in which it has been mentioned that a person to become notary must have at least practice of 10 years; or in the case of Scheduled Castes/Scheduled Tribes or women seven years; or is a member of the Indian Legal Sen/ice; or at least 3^- Page7ofl7 ^ ^VWM^ ten years as a member of Judicial Service; or held an offlce under the Central Government or a State Govemment requiring special knowledge of law after enrolment as an advocate or held an office in the department of Judge, Advocate Generat or in the legal department of the armed forces. Rule 4 of the Rules envisages about "Application for appointment as a notary". Rute 6 envisages about "Preliminary action on application" that the competent authority shall examine every application received by him and he is also entitled to reject the application within six months if the applicant does not possess the qualifications. Further Sub-rule (2) (b) of Rule 6 envisages that the competent authority may ascertain from any Bar Council, Bar Association about the applicant and the objections, if any, to the appointment ofthe applicant as notary, to be submitted within the timefixed for the purpose. Rule 7 envisages "Recommendation by the competent authority". As per Rule 8 (1), on receipt of the report of the competent authority, the appropriate Government shall consider the report and then allow the application. Thereafter, sub-rule (3) of Rute 8 envisages about review, if the application is rejected. Sub-rule (4A) of Rule 8 envisages the numbers of posts of notaries to be fixed as per the Schedule for every State. Rule 8A is about "Extension of area of practice". Rule 9 is regarding "Fees for issue and renewal of certificate of practice and extension ofarea". Rule 10 is about the fees to be charged on various functions to be performed by the notary. Again Rule 12 is about "Seal ofnotary". Rule 13 envisages about "Inquiry into the allegations of professional or other misconduct of a notary". 14.Therefore, a scheme has been framed under the Act and the Rules. A glance on the above provisions shows about eligibility of a person to become Notary Public, procedure for appointment ofNotary Public, renewal of certificate as well as the area for which he is to be appointed as notary. Section 10 of the Act envisages about removal of notary, how he is to be removed. Under the Rules, Rule 13 envisages about inquiry against the misconduct of a notary, 15. Slmilar order regarding renewal of notary was passed by the State of Kerala when the un-amended Act was in existence, which came to be challenged before the Kerala High Court in the matter ofA. Gourisankar v. The State of Kerala reported in AIR 1991 Kerala 22S, and the matter came up before the Division Bench of Kerala High Court also in the matter of State of Kera^a and etc. etc., v. K.U. Narayana Poduval and etc. etc., reported in rage a 01 11 ^- AIR 1992 Kerala 162. The learned single Judge in the case of A. Gourisankar (supra) held that restricting the practice to maximum sb( years i.e. two terms is arbitrary and against public policy. It will be manifestly against public interest if one who has accumulated experience of six years is scuttled merely for giving newjob opportunity to others. A notary public, once registered as such is entitled to automatic renewal on making an application and payment of fee. The State Government is a functionary of limited power under the scheme of the Act. The exercise of its powers is conditioned by the statutory provisions. The Division Bench in the case of State of Kerala (supra) held that in view ofthe word 'shall' in Section 5 (2) of the Act, the State Government has no discretionary power vested in it as the Act contains provisions for removal under Section 10, and the Rules also make provisions for inquiry to be conducted at the time of renewal. It is held that so far as the right of renewal is concerned, it is for the Legislature to make appropriate provisions whether there should be a discretion vested in the authority concerned or there should be no discretion. Once a poiicy is taken by the express provisions ofthe Act, as in the present case, it will be difficult to say that there is any power in the Government to pass an administrativeorder or to make a rule contrary to the provisions of the Act. It was held that the provisions of Section 5 (2) are mandatory and the right of renewal is automatic. The Court relied upon the decision ofthe Calcutta High Court in the matter ofJ.J. Lahiri v. State,AIR 1985 Cal140, in which the Calcutta High Court held that a person who is otherwise quallfied to be appointed as a Notary has a legal right to get his licence rene^wed and he cannot be disqualified on his attaining the age of 70 years. Such a disqualiflcation, the learned single Judge held, can be made only by legislation and not by any executive order. The Govemment has no power under Article 162 of the Constitution of India to take any policy decision to introduce such disqualification in view of the express provisions in the Act and the Rules. 16.Now, we have to examine in the light ofthe above history ofthe legislation that what is the impact of substitution ofthe word 'may' instead ofthe word 'shall', whether the order impugned issued by the State Government is based on reasonable nexus/rational with the object and scheme of the Act, or whether the said action ofthe State Government amounts to fetter on its discretion. In the matter of Shri Rama (supra), the Constitution Bench of the Apex Court was required to consider the provisions of sub-section (3) of Section 21 of the Andhra Pradesh Sugarcane (Regulation of Supply and Page9ofl7 Purchase) Act, 1961. As per the provisions of Section 21 (3) the Government was entitled to exempt from the payment of tax any new factory for a period of three years and any factory which, in the opinion of the Government, has substantially expanded, to the extent of such expansion, for a period not exceeding two years from the date of completion ofthe expansion. The State Government exempted only newty constructed co-operative sugar factories and that was challenged before the High Court by the newly constructed sugar factories other than co- operative factories. The High Court rejected the objection and when the matter came up before the Constitution Bench of the Apex Court, the majority view held that "Co-operative sugar factories consisfing of sugarcane growers fall uncter a distinct cafegory different from other categories. Sugarcane growers have been the object of particular considerafion and care of the Legislature. The Government are justified in treating the sugar factories consisting of sugarcane growers as a distinct cafego/y", and thereby exempting them from payment oftax. Initially, the State ofAndhra Pradesh has properly exercised the discretion conferred on it by the statute. However, a dissenting judgment was given by two Judges (Mathew and Bhagwati, JJ) dissenting from the majority judgment and quashed the Government order finding the same as arbitrary and directed to consider the petitioner's case on merits and pass appropriate order in each case without taking into account the policy decision. 17.The Apex Court based on the arguments advanced by learned counselfor the parties, referred to S.A. de SmSh's Judicial Review of Administrative Action (2nd Ed&ion) wherein it is observed as follows: - °A tribunal entrusted with a discretion m,ust not, bythe adoption of a general rule of policy, disabte itself from exercising its discretion in individual cases... ...But the rule that it formulates must not be based on considerations extraneous to those contemplated by the enabling Act; othewise it has exercised its discretion invalidly by taking irrelevant considerations intq account. Again, a factor that may properly be taken into account in exercising a discretion may become an unlawful fetter upon discretion ifit is elevated to the status of a general rule that results in the pursuit of consistency at the expense of the ' merits of individual cases. ... A fortiori, the authority must not predetermine the issue, as by resolving to refuse all applications or all applications of a certain class or all applications except those of a certain class and then proceeding to refuse an application before it in pursuance of such a resolution..." (Emphasis supplied) lt'TI ^ Pagel0ofl7 ,r^ 18-The Apex Court also referred to PadfieV v. Mlnster af Agriculture, (1968) 1 AK ER 694 in which it was held that the refusal of the Minister to exercise the power vested in him was considered as frustrating the object of the statute which conferred the discretion and that is why a direction was issued to the Minister to consider the appellants' complaint according to law. The Court referred to the said decision obsen/ing that we have already discussed the background and the purpose oftheAct under consideration and are unabte to hold that in refusing to grant exemption in these cases the State of Andhra Pradesh was acting so as to frustrate the purpose of the Act. 19.However, the Apex Court distinguished the judgment in Rex v. London County Coiincil, (1918) 1 KB 68 and held that the same is distinguishable on the facts of the case. The policy behind the Act there under consideration was obviously to permit sale of any article or distribution of bills or like things and in deciding that no permission would be granted at all the London County Council was rightly held not to have properlyexercised the discretion vested in it. The Apex Court relied on R. v. Port of London AuthorXy, (1919) 1 KB 176, 184. m which it was hetd that "There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, Mvithout refusing to hear an applicant, intimates to him what its policy is, and that after hearing him 'rt will in accordance \with its policy decide against him, untess there is something exceptional in his case ...... ifthe policy has been adopted for reasons which the tribunal may tegitimately entertain, no objection could be taken to such a course. On theother hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide