1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT 1. Tarun Mehta & Ors.Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10569/09) 2. Narayan Singh Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10699/09) 3. Surendra Kumar Sharma & Anr. Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10700/09) 4. Madan Lal Luhar Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10701/09) 5. Satya Narain Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10704/09) 6. Kamal Kumar Shrimali & Anr. Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10876/09) 7. Vijay Raj Parakh Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11123/09) 8. Ajit Singh Solanki Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11326/09) 9. Kishan Gopal Badmera Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11482/09) 10.Balram Kaswan Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.235/10) 11.Udai Lal Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11104/09) 12. Surendra Mohan Mishra Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.236/10) 13. Kanwar Lal M. Bhandari Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.363/10) 14. Budhi Prakash Purohit Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.170/10) 15. Om Prakash Jain Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.171/10) 16. Sajjan Mal Jain Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.181/10) 17.Chandra Prakash Tiwari Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.421/10) 18. Pradeep Kumar Vyas Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.10858/09) 19. Ram Kishore Choudhary & Ors. Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11025/09) 20. Jeeya Ram Rayal Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11053/09) 21. Kishan Lal Jat Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11060/09) 2 22. Jagdish Chandra Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11063/09) 23. Om Prakash Sharma Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11064/09) 24. Mukesh Kumar Devpura Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11065/09) 25. Lal Singh Parmar Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11066/09) 26. Ummed Singh Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11067/09) 27. Chaturbhuj Paliwal & Anr. Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11068/09) 28. Durga Lal Kumahar Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11086/09) 29. Smt. Sushila Kothari Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11101/09) 30. Ram Singh Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11102/09) 31.Parasmal Soni Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11111/09) 32. Gajraj Singh Rajvi Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11121/09) 33. Jagdish Singh Solanki Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11122/09) 34. Satya Narain Soni Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11140/09) 35. Chandan Singh Rathore Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11150/09) 36. Braham Prakash Sharma Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11152/09) 37. Jiya Ram Godara Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11158/09) 38. Kuldeep Singh Soni Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11161/09) 39. Manohar Singh Rajput Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11171/09) 40. Krishna Gopal Soni Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11172/09) 41. Nizam Khan Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11173/09) 42. Mangi Lal Khandelwal Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11174/09) 43. Mool Chand Solanki Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11188/09) 44. Hema Ram Bera Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11192/09) 45. Abdul Wahid Siddiki Vs. State of Raj. & Ors. 3 (S.B.CIVIL WRIT PETITION NO.11212/09) 46. Arjun Upadhyay Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11321/09) 47. Narayan Ram Kumhar Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11551/09) 48. Banwari Lal Dixit Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11559/09) 49. Kishori Lal Soni Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11570/09) 50. Hardin Ram Jakhar Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11572/09) 51. Ummed Raj Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11604/09) 52. Smt.Bhuwneshwari Jain Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11626/09) 53. Khyali Lal Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11642/09) 54. Kamla Prasad Paliwal Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11665/09) 55. Jaswant Singh Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11775/09) 56. Murli Manohar Bora Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11819/09) 57. Gautam Prakash Sharma Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11820/09) 58. Soan Dan Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11821/09) 59. Ashok Kumar Bagaria Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11824/09) 60. Heer Singh Balara Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.4/10) 61. Nand Kishore Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.5/10) 62. Govind Singh Sirohiya Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.51/10) 63. Kanti Lal Parihar Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.86/10) 64. Subhash Gupta Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.97/10) 65. Jagdish Kumar Chhangani Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.136/10) 66. Mahesh Soni Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.140/10) 67. Champa Lal Kothari Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.183/10) 68. Sardar Singh Barhat Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.227/10) 4 69. Mahendra Kumar Pareek Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.654/10) 70. Onkar Singh Shekhawat Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.1040/10) 71. Devki Nandan Joshi Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.1042/10) 72. Bhagwatilal Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11273/09) 73. Lal Singh Rathore Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11812/09) 74. Harish Chandra Tiwari Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.11/10) 75. Devi Lal Dangi Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.19/10) 76. Manohar Narayan Mehta Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.41/10) 77. Babulal Sankhla Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.224/10) 78. Chandra Prakash Gupta Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.428/10) 79. Chatur Singh Choudhary Vs. State of Raj. & Ors. (S.B.CIVIL WRIT PETITION NO.623/10) Dated:- 22nd February,2010. HON'BLE MR.JUSTICE SANGEET LODHA Mr. M.S.Singhvi, Mr. Manish Patel,Mr. Narendra Singh,Mr. Rajesh Choudhary, Mr. Rajesh Parihar ,Mr. Ramesh Purohit,Mr. Sunil Mehta, Mr.B.L.Choudhary, Mr.G.S.Rathore, Mr.Sandeep Saruparia,Smt. Raghuraj,Mr. Nikhil Dungawat, Mr. M.S.Panwar for Mr.K.L.Thakur, Mr.I.R.Choudhary, Mr.R.S.Gill,Mr.Rakesh Arora,Mr. S.K.Punia, Mr. Ravindra Acharya, Mr. Rajat Dave,Mr. J.K.Chanda, Mr. S.N.Tiwari,Mr. Anil Bhandari, Mr. C.S.Kotwani , Mr. Manish Pitaliya ,Mr. Sandeep Shah, Mr. B.S. Sandhu, Mr. L.D.Khatri, Mr. Ranjeet Joshi, Mr. Dron Kaushik, Advocates for the petitioners. Mr. R.L.Jangid, Additional Advocate General alongwith Mr. Nimesh Suthar, for the State. BY THE COURT :- Reportable 1. These writ petitions involve a common question of law as 5 regards to petitioners' legal right for renewal of the certificate of practice as a Notary, therefore, the same were heard together and are being disposed of by this common judgment. 2. The facts of writ petition No.10569/09 “Tarun Mehta & Ors. vs. State of Rajasthan & Ors.” which was taken as a lead case by the learned counsel for the parties for the purpose of arguments are being taken into consideration. 3. The petitioners were appointed as notaries under the provisions of Notaries Act, 1952( in short “the Act”) and the Rules made thereunder namely, Notaries Rules, 1956( in short “the Rules”) by the State Government by a common order dated 14.11.02. The petitioners were authorised to practice as notary in Pali, District Pali for a period of five years from the date of issuance of certificate in this regard. The certificates in terms of sub-rule (4) of Rule 8 of the Rules were issued in their favour on 26.11.02. Before the expiry of the period fixed in the order dated 14.11.02, the petitioners preferred applications for renewal of their certificates of practice after payment of prescribed fee. The petitioners in the writ petition namely Tarun Mehta, Om Prakash Kachhwaha and Mangi Lal Choudhary applied for renewal on 25.10.07, 3.10.07 and 25.10.07 respectively. On the petitioners submitting the application for renewal as aforesaid, the Deputy Secretary, Law & Parliamentary Affairs Department, Government of Rajasthan requisitioned the report regarding the petitioners 6 working as notaries during the preceding five years vide communication dated 21.8.08 from the District & Sessions Judge, Pali. Pursuant to communication dated 21.8.08 , the Chief Judicial Magistrate, Pali called the petitioners for furnishing the relevant record and registers maintained by them for inspection. However, all of a sudden, the petitioners have received the communications dated 29.10.09 intimating that as per the decision taken by the State Government under the provisions of the Act and the Rules as amended , their certificates authorising them to practice as a notary are not renewed and therefore, they may stop working as a notary forthwith under the said certificate of authorisation. Hence, these petitions. 4. Learned counsel for the petitioners Mr. M.S.Singhvi submitted that the communications intimating refusal to renew the certificate of authorisation and directing the petitioners to stop working as notaries are illegal inasmuch as, the same have been issued in gross violation of the provisions of the Rules which govern the renewal as also the basic principles of natural justice. Learned counsel submitted that under the Act or the Rules , there is no provision authorising the State Government to refuse the renewal,on the contrary, the scheme of the Act and the Rules clearly envisages that the renewal of certificate of authorisation has to be granted as of right subject to the 7 conditions of submissions of the applications and payment of the prescribed fees. Learned counsel submitted that the circumstances under which the name of appointed notary could be removed from the register maintained by the State Government u/s 4, are clearly mentioned u/s 10 of the Act. It is submitted that none of these conditions mentioned stand satisfied in the instant cases and therefore, it was not open for the State Government to have refused renewal to the petitioners. 5. It is next contended by the learned counsel that the petitioners continued to discharge the duties of the notary pending consideration of their applications for renewal and the same having not been granted or refused by the State Government within the reasonable time, their renewal shall be deemed to have been granted. Learned counsel submitted that the renewal has been refused in the garb of the provisions of the Act and the Rules as amended but the Rules as amended prescribes a different procedure than existing for appointment of notary and not for renewal of the certificates of authorisation already issued. It is further submitted by the learned counsel that even if the power vested in the State Government in the matter of renewal of the certificate of authorisation as per sub- section (2) of Section 5 as substituted by Act 36 of 99 w.e.f. 17.12.99 is taken to be discretionary, the discretion vested has 8 to be exercised judicially and for the said purpose, the circumstances enumerated u/s 10 of the Act for removal of names of the practising notaries from Register maintained by the State Government u/s 4 can be read as guidelines. Learned counsel submitted that admittedly, the renewal has been refused by the State Government without giving an opportunity of hearing to the petitioners and therefore, the order impugned being passed in violation of the principles of natural justice deserves to be quashed and set aside on this count alone. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of M/s Raj Restaurant & Another vs. Municipal Corporation of Delhi, AIR 1982 SC, 1550. Lastly, it is submitted by the learned counsel that as a matter of fact, the controversy involved in these petitions stands settled by a Jaipur Bench of this Court vide judgment dated 18.12.09 rendered in the matter of Smt. Asha Bhansali vs. State of Rajasthan & Ors.(S.B.Civil Writ Petition NO.15119/09) and other connected writ petitions. 6. The other counsels appearing for the respective petitioners in other writ petitions have adopted the arguments advanced by learned counsel Mr. M.S.Singhvi. 7. On the other hand, Mr. R.L.Jangid, learned Additional Advocate General submitted that vide notification dated 24.2.09 issued by the Central Government in exercise of the power 9 conferred by Section 15 of the Act, some material amendments have been made in the Rules which have come into force w.e.f. 1.3.09 and thereby a complete new procedure has been laid down for the appointment of the notaries therefore, the State Government has taken a policy decision that all appointments as a Notary shall be made in accordance with the amended provision of Rules so as to extend equal opportunity to all the advocates in consonance with Article 14 of the Constitution of India and therefore, the certificates of authorisation of the existing notaries have not been renewed. It is submitted by the learned Additional Advocate General that while providing a new procedure for appointment of the notaries by amending Rule 6 and 7 and inserting a new Rule 7A, a transitional provision in terms of Rule 7B has also been incorporated which provides that all memorials received by the competent authority, which are pending shall be processed/examined in accordance with the provisions of the Rules as amended by the Notaries (Amendment) Rules, 2009, therefore, the policy decision taken by the State Government cannot be faulted with. It is submitted that the appointment as a notary did not confer any accrued or vested right on the petitioners and therefore, the State Government is not precluded from taking a decision not to renew the certificate of authorisation issued. In support of the contention, the learned Additional Advocate General has relied 10 upon a decision of the Hon'ble Supreme Court in Kuldeep Singh vs. Government of NCT of Delhi, (2006) 5 SCC, 702. 8. Learned Additional Advocate General vehemently contended that the petitioners are not entitled to claim renewal of certificates as a matter of right . It is submitted that before the amendment introduced w.e.f. 17.12.99 , the renewal of the certificate of authorisation on submission of the application and payment of prescribed fee was as a matter of right but after substitution of the word “shall” by the word “may” by way of amendment of sub-section(2) of Section 5 of the Act, makes the provision directory and discretionary and therefore, the State Government is well within its right to refuse the renewal. 9. Learned Additional Advocate General further submitted that no person is entitled to practice as a Notary unless he possesses a valid certificate issued by the State Government/Central Government authorising him to practice as such. It is submitted that the petitioners were authorised to practice as a Notary for a period of five years and their certificate of authorisation having already expired , they cannot be permitted to practice as a Notary in violation of the provisions of the Act and the Rules. It is submitted by the learned Additional Advocate General that the petitioners in some of the writ petitions did not submit their applications for renewal before the expiry of the period of certificate of authorisation therefore, 11 in terms of provisions of Rule 8-B of the Rules, their claim for renewal was liable to be rejected on this count alone. 10. Learned Additional Advocate General urged that Section 10 of the Act deals with the removal of the notaries appointed from the Register maintained u/s 4 of the Act on the existence of circumstances enumerated in no manner regulates the grant or refusal of the renewal. It is submitted that as a matter of fact, in terms of clause (f) of Section 10 non renewal of the certificate of practice is a ground for removal of the name of the appointed notaries from the Register,therefore, it is misconceived to contend that Section 10 provides guidelines for consideration of the matter of renewal of the certificate of authorisation. 11. Lastly, it is submitted by learned Additional Advocate General that the Act or the Rules does not envisage any opportunity of hearing to the applicants before refusal of the renewal and therefore, the petitioners were not entitled to any opportunity of hearing and therefore, the decision taken by the State Government exercising discretion vested in it cannot be said to be illegal , arbitrary and without jurisdiction warranting interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 12. I have given my thoughtful considerations to the rival submissions and perused the material on record. 13. Before proceeding to consider the rival contentions of the 12 parties, it will be beneficial to have a glance at the scheme of the Act and the Rules. 14. By virtue of provisions of Section 138 of the Negotiable Instruments Act, 1881, the Government of India had the power to appoint notary public only for the limited purpose of performing function under that Act and therefore, so as to empower the Central and State Governments to appoint notaries generally for all recognised notarial purposes and to regulate the profession of notaries , the Act was enacted which has come into force w.e.f. 14.2.56. 15. Section 3 of the Act deals with power to appoint notaries . The Central Government is empowered to appoint as notaries any legal practitioners or the persons who possesses such qualification as may be prescribed for whole or any part of India whereas, the State Government has such powers for whole or any part of the State. As per sub-section (1) of Section 4, the names of the persons appointed as notaries and the necessary particulars about them as specified under sub-section (2) of Section 4 are required to be entered in a Register of notaries to be maintained by the Central Government and the State Government in such form as may be prescribed. Sub-section (1) of Section 5 provides that every notary who intends to practise as such may on payment to the Government appointing him of the prescribed fee , if any, be entitled to have his name entered 13 in the register maintained by the Government under Section 4. The person appointed as a notary becomes entitled to a certificate authorising him to practise for a period of five years from the date on which the certificate is issued to him. 16. The renewal of the certificate issued is dealt with by sub- section (2) of Section 5. As per sub-section (2) of Section 5 as originally framed, the State Government was under an obligation to renew the certificate of practise of any notary for a period of five years on receipt of the application in the prescribed fee. But after the amendment introduced by Act 36 of 1999 w.e.f. 17.12.99 , the word “shall” employed in sub-section (2) of Section 5 stands substituted by the word “may” and therefore, now a discretion is vested in the State Government to refuse the renewal, obviously for the valid reasons. 17. Section 6 of the Act provides that the Central Government or every State Government shall during the month of January of each year, publish in official gazette a list of notaries appointed by the Government in practise at the beginning of that year with such detail pertaining to them as may be prescribed. Section 8 defines function of the notaries and Section 9 put a bar on any person to practise as a notary unless he holds a certificate of practice in force issued to him u/s 5. Section 10 delineates the circumstances under which the Government appointing any notary may by order remove his name from the register 14 maintained by it in terms of Section 4 of the Act. Section 15 empowers the Central Government to frame Rules to carry out purposes of the Act by notification in the official gazette. 18. In exercise of the powers conferred by Section 15 of the Act, the Central Government has framed the Rules which have come into force w.e.f. 15.2.56. The Rules framed regulates the qualification for appointment as notary , number of notaries to be appointed in each State or union territory by the appropriate Government, the procedure for such appointments , certificate of authorisation, fee for issue and renewal of certificate of practice , inquiry into allegations of professional or other misconduct of a notary, submission of returns, annual publication of list of notaries etc. 19. It will be beneficial to notice the provisions contained in the Rules relevant for adjudication of the controversy involved in these petitions. Rule 3 of the Rules lays down qualification for appointment as notary . As per Rule 4 a person holding the qualification for appointment as notary is entitled to make an application for appointment as such in the Form of Memorial addressed to such officer or authority of the appropriate Government as the Government may by publication of the notification in the official gazette designate in this behalf. Rule 6 which deals with preliminary action on application , provides that if the competent authority after examining the application 15 received by him is satisfied that the application is not complete in all respect or the applicant does not possess the qualification specified in Rule 3 or that any previous application of the applicant for appointment was rejected within six months before the date of application, shall reject it summarily and inform the applicant accordingly. If the application is not rejected summarily, the competent authority may requisition the information/objection if any, regarding the appointment of applicant as a notary from Bar Council, Bar Association incorporated Law Society or other Authority in the area where the applicant proposes to practice. Rule 7 provides that the competent authority shall make the recommendations after holding such inquiry as he thinks fit having regard to the matters namely, whether the applicant ordinarily resides in the area in which he proposes to practice as notary , the commercial importance of the area in which the applicant proposes to practise and number of existing notaries practicing in area and whether it is necessary to appoint any additional notaries for the area and further the knowledge and experience of the applicant of commercial law , the nature of objection if any raised in respect of his appointment as notary, regarding the comparative suitability of the applicant where application from other applicants in respect of the area are pending etc. The applicant is entitled to an opportunity of hearing to make his representation 16 against the objections, if any. Thereafter, as per Rule 7A inserted vide notification dated 24.2.09 which has come into force from 1.3.09, if the appropriate government allows , the applicant shall be asked to appear before the Interview Board to be constituted by the appropriate Government from amongst its officers dealing with the legal matters, to judge the competency of the applicant for being appointed as notary. A transitional provision in terms of Rule 7B has been incorporated to deal with the applications pending upto 28.2.09 which provides that the same shall be processed/examined in accordance with the provisions of the Rules as amended by Notaries (Amendment) Rules, 2009. Rule 8 provides that on the receipt of the recommendations of the Interview Board , the appropriate Government may allow the application in respect of the whole of the area to which it relates or in respect of any part of area to which it relates