IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3646 of 2007(H)
1. SINDHU BERNARD,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE ADDITIONAL LAW SECRETARY TO
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :01/04/2009
O R D E R
P.R. RAMACHANDRA MENON, J.
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W.P.(C) No.3646 OF 2007
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Dated this the 1st day of April, 2009.
J U D G M E N T
The prayer of the petitioner is for directing the first
respondent to issue ‘Certificate of Registration’ to her as a
Notary under Rule 8(4) of the Notaries Rules, 1956; pursuant to
completion of all formalities in response to her application for
appointment as Notary and remittance of the fees as prescribed.
The petitioner also relies on Exhibits P3, P5 and P6 proceedings
issued by the concerned authority under the Law Department
asking the petitioner to appear for a hearing and to produce the
relevant records for verification as per the Notaries Rules.
2. The second respondent has filed a counter affidavit
stating that the entry with regard to the name of the petitioner in
the Notarial Register was only a mistake, as no appointment
could have been given to the petitioner since it exceeded the
sanctioned strength. According to the second respondent,
necessary inspection was conducted by the Law Department
W.P.(C) No.3646/07 2
pursuant to the application made by the petitioner to ascertain
the infrastructure and such other credentials of the petitioner,
also calling for a report from the Bar Council. There is no case
for the second respondent that the petitioner is not a fit person
or not a suitable person to be appointed as a Notary. On the
other hand, the only case projected in the counter affidavit is that
there was “no vacancy” to accommodate the petitioner in respect
of the concerned area/Revenue District/District (as applied for).
It is also pointed out that the competent authority, after the local
inspection and enquiry, had submitted a report/recommendation
to the Government stating that no vacancy was available to
accommodate the petitioner (paragraph 2). The said statement
rather appears to be a paradox, in so far as the absence of
vacancy was very much known to the Law Department, and if it
be so, what prompted the Department to inspect the office of the
petitioner and to ascertain the availability of necessary
infrastructure, simultaneously calling for a report from the Bar
Council, remains to be a matter of mystery.
3. It has been stated in paragraph 4 of the counter affidavit
W.P.(C) No.3646/07 3
that, pursuant to the amendment of the relevant rules (Sub Rule
(4A) inserted in Rule 8 of the Notaries Rules 1956), the
maximum ceiling as to the permissible number of Notaries was
specified in the schedule as ‘375’, as stated in paragraph 5 of the
counter affidavit. Learned Government Pleader points out that
the said number has now gone up to ‘563’ by virtue of the
amendment of the schedule (as per amendment dated
19.05.2006). Placing reliance on the above position, particularly
as to the absence of vacancy, it is asserted by the learned
Government Pleader that no interference is possible since the
petitioner does not have any vested right to be appointed as a
Notary.
4. It is relevant to note that there is no case for the
respondents that the petitioner is not a fit or suitable person to
be appointed as a Notary or that she is disqualified in any
manner. As pointed out, the concerned authority also had
submitted a report before the Government stating that no
appointment could be effected due to ‘lack of vacancy’. But,
since the specific case of the Government is that the petitioner
W.P.(C) No.3646/07 4
could not be accommodated for want of vacancy, it has
necessarily to be inferred that nobody else has been appointed by
the Government as Notary in the particular area in respect of
which the petitioner had put forth a claim. Learned counsel for
the petitioner brought to the notice of this Court that steps were
being pursued by the respondents to effect appointment of
Notaries contrary to the rules and norms as highlighted in
Exhibit P7 news paper report. The first respondent has filed a
counter affidavit/ additional affidavit dated 17.12.2007 in
I.A.No.375/2007, where it has been asserted that the
Government has no proposal at all to appoint ‘240’ Notaries as
alleged and that the averments/allegations in the above news
paper report did absolutely have no basis at all. In view of the
categoric assertion in the above affidavits, the Court is made to
believe that no appointment of Notary has been effected by the
Government in respect of the area in question.
5. In the above circumstances, it is hereby declared that
the petitioner does not have any vested right to be issued the
‘Certificate of Registration’ merely for having entered her name in
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the Notarial Register by way of mistake, when there was no
vacancy as per the Rules. However, it is made clear that the
petitioner will be entitled to be appointed as a Notary in the
particular area, if the Government has appointed anybody else,
whose application is subsequent to the application preferred by
the petitioner, as a Notary in the said area. This aspect as to the
eligibility shall be considered by the first respondent and
necessary orders shall be passed in this regard within a period of
three months from the date of receipt of a copy of this judgment,
after giving an opportunity of hearing to the petitioner. The
petitioner shall produce a copy of this judgment before the first
respondent.
This writ petition is disposed of accordingly.
P.R. RAMACHANDRA MENON
JUDGE
smp
W.P.(C) No.3646/07 6
P.R. RAMACHANDRA MENON, J.
W.P.(C) No. 3646 OF 2007
J U D G M E N T
01.04.2009