Naresh Kumar Patel vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

Heard learned counsel appearing for the parties.

The petitioner seeks to challenge the order dated 10.02.2004 (Annexure P-8), whereby, the appointment of the petitioner as Notary under the

provisions of Section 3 of the Notaries Act, 1952 (for short ""the Act, 1952"") and the Notaries Rules, 1956 (for short ""the Rules, 1956"") was

canceled on the ground that on a complaint, it was found that the petitioner did not possess the requisite experience as required under Rule 3(a)

and (aa) of the Rules, 1956. The petitioner was appointed on 02.07.2003 (Annexure P-7) as Notary as aforestated. Thereafter, by the impugned

order dated 10.02.2004 (Annexure P-8), the appointment of the petitioner as Notary was terminated.

Learned counsel appearing for the petitioner submits that the petitioner was having proper experience and terminating his appointment and

striking off his name from the Notary Register is bad in law, as no opportunity of hearing was provided to the petitioner to clarify as to how the

petitioner has requisite experience under Rule 3(aa) of the Rules, 1956. The petitioner was enrolled with the Bar Council on 02.11.1995, he

started his practice with immediate effect.

Learned Advocate General, who was appointed as Amicus Curiae on 13.01.2009 submits that the Rules, 1956 were framed by the Central

Government in exercise of powers conferred by Section 15 of the Act, 1952. Rule 3 provides for qualification for appointment as a Notary,

wherein, it is provided that no person shall be eligible for appointment as Notary, unless on the date of the application for such appointment (a) a

person had been practicing atleast for 10 years, or (aa) a person belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes

had been practicing at least for seven years. Rule 144(a) framed by the State Bar Council provides that an Advocate after he has been enrolled

with the State Bar Council, shall become a member of the Bar Association within one month where he proposes to practice and meticulously

observe the rules of that Bar Association.

In the case on hand, the petitioner was not allowed to practice before he became member under Rule 144(a) of the State Bar Council Rules.

Section 24(1)(e) of the Act, 1961 reads as under:

(e) he fulfills such other conditions as may be specified in the rules made by the State Bar Council under this Chapter;

Section 28(2)(d) of the Act, 1961 reads as under:

(d) the conditions subject to which a person may be admitted as an advocate on any such roll;

Section 144(a) of the Rules framed by the State Bar Council of Madhya Pradesh in exercise of powers u/s 28(2)(d) and 24(1)(e) of the Act,

1961, which has been adapted by the State Bar Council of Chhattisgarh, reads as under:

144(a) That, he shall within a month from the date of his enrollment become a member of the Bar Association where he proposes to practise and

meticulously observe the rules of that Bar Association. In case of change of place of practice he shall become a member from the date of giving

intimation thereof to the Bar Council.

Explanation: ""Bar Association"" means a Bar Association recognized by the State Bar Council of Madhya Pradesh under the rules framed by it for

the purpose, namely ""Rules for recognition of the Bar Association by the State Bar Council of Madhya Pradesh.

On the issue of show cause notice and compliance of the principles of natural justice, Shri Pankaj Shrivastava, learned State counsel, submits

that admittedly no opportunity of hearing was afforded before passing the impugned order.

Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto and also on careful

consideration of the provisions of law, in fact, it is nowhere provided that the Advocate after enrollment by the State Bar Council, is debarred from

the practice, till he becomes member of the Bar Association. The only condition is that he shall within a month from the date of his enrollment

become a member of the Bar Association where he proposes to practice and observe the rules of that Bar Association. It cannot be held that the

period of practice has to be counted only from the date of becoming of a member of the Bar Association. If an Advocate is not registered with the

Bar Association of other place but there also, he is free to practice. He cannot be prohibited from practicing under the Advocate Acts.

Under the Advocates Act, 1961, an Advocate is entitled to practice anywhere, however, he is required to become a member of the Bar

Association where he regularly proposes to practice within one month from the date of enrollment with the Bar Council. Thus, the contention that

the period prior to becoming member of the Bar Association for practice cannot be counted as experience, is noticed to be rejected.

Another aspect of the matter is that if he is practicing before becoming a member of Bar Association, which authority will give the certificate of

experience. Certainly the Bar Association cannot give a certificate, as he was not a member of the Bar Association. However, the head of the

judicial institution i.e. the Court may always give a certificate for experience.

In the case on hand, memo was sent by the District & Sessions Judge on verifying the facts of the experience. On perusal of the pleadings, it

appears that no certificate of the practice was issued by the Bar Association. All the facts are not properly settled.

Thus, for the reasons mentioned hereinabove, the impugned order dated 10.02.2004 (Annexure P-8) is quashed. However, liberty is reserved

to the State Government to issue a show cause notice and after examining the case on merit, in view of the afore-stated observation, pass a fresh

order.

This Court, by order dated 02.04.2004, directed not to fill up this post and, as such, if the petitioner succeeds on enquiry, the petitioner will be

entitled to complete the remaining term of 5 years, as per the original order dated 02.07.2003.

This Court records appreciation of the qualitative assistance rendered by the learned Amicus Curiae. Accordingly, the writ petition is allowed

to the above-extent. No order as to costs.