W.P. No ^ 2003 v. State of Chhattisgarh

HIGH COURT OF JUDICATURE AT BILASPUR. CHHAm«3ARH •p-^' ^^ > ( t ^ 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 POST FOR ORDER ON 24 MARCH, 2005 L.C.B»J iHADOO 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 --", Page2ofl7 Present: - Mr. Y.C. Shanna, Advocate: For 3247/2003and1171/2003. petitioners ^ in W.P.Nos. Mr. Prashant Jayaswal, Sr. Advocate with Wr. Ali Asgar, Advocate.: For the petitioner in W.P.No.1600/2003. 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. 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, 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. In the last,

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.N o.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 Petitioner Gopal Krishna Beriwal renewal vjde Annexure P-4, but the same was rejected vide Annexure P-5. (W.P.No.494/2003) was appointed as thereafter his certified Notary Public for District: Raigarh on 10-11-1978, r 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.N o.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 Page4ofl7 amounts to fetter on the discretion of the State, and against the public interest. The law does not reeognize fetter on the discretion. r3,

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 in its wisdom took a policy decision to increase the Central Government 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 issued the the certificate of practice, and the State Govemment thereafter, K 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 Government. He further argued that in any way be termed as fetter on the discretion of the 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 Industries Ltd. vs. State of Andhra Pradesh and others). Sugar Ultimately, learned Advocate General argued that the petitioners have not challenged the policy decision, therefore, on this ground also the petitioners )etitions fail. 8AAs far as the last submission made by learned Advocate General 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 In para refusal. The refusat to renew the certificate of notary is arbitrary. 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 the policy decision has been challenge being arbitrary. Of writ petition, 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. 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 was there which has been replaced by the word Section 5 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 'shall' picture. a/ In sub-section (1) of Section 5 Old New Everynotarywhointendsto Every notary who intends to practice as such shall on practice such may, to the Government payment payment Government appointing him appointing him of the prescribed ofthe prescribed fee, ifany, fee, ifany, be entitled- be entitled - b/ tn Section 5 (1) (b) Old To a certificate authorizing To a certificate authorizing him to him to practice for a period practice for a period offlveyears three years from the from the date on which the date on which the certificate certificate issued to him. issued to him. New New The Government appointing the notary, may, on receipt of an application and the prescribed renew the certilicate of practice of any notary for a period offlve years at a time. c/ Sub-Section (2) substituted Old Every such notary who wishes continue practice after the expiry of the period for which his certificate of practice has issued under section shall on application made to the Govemment appointing payment prescribed if any, be entitled to fee, practice renewed for three years at a time. certilicate "tegal

10.8ection 2 (c) of the Act defines, 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 "the this Act. Section 3 envisages that, 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 ^iv-^^i.i.,t.ig^!,ahss 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. 3^-

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 it has been appointment was for three years and after the amendment is atso for five years. After the extended to five years and renewal amendment particularly in sub-section (2), significant change has been In the otd Section there was a mandate that "under this section inserted. shall on application.to be made to the Government appointing him and if any, be entitled to have his certificate of payment the prescribed fee, 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 they have been replaced by the words 'may' and 'reneW. entitled', 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". the "Seal of notaries". Section 8 envisages Section 7 envisages about 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, practice as a notary; or is convicted by any court for an offence involving turpitude; or does not get his certificate of practice renewed, 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", in the opinion of the Government, renders him unfit Therefore,

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 Page7ofl7 ^ 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". the fees to be charged on various functions to be Rule 10 is about performed by the notary. Again Rule 12 is about "Seal ofnotary". Rule 13 "Inquiry into the allegations of professional or other envisages about 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 ^VWM^ :s, i rage a 01 11 ^- two terms is arbitrary and against public policy. The learned single Judge in the case of A. AIR 1992 Kerala 162. Gourisankar (supra) held that restricting the practice to maximum sb( years It will be manifestly i.e. 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 for the Legislature to make appropriate provisions whether there should be a discretion vested in the authority concerned or there should be no is concerned, 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 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 In the matter of Shri Rama (supra), the Constitution Bench of discretion. 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 As per the provisions of Section 21 Purchase) Act, 1961. 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 to the extent of such the Government, has substantially expanded, 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 expansion, (3) 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, "Co-operative sugar from other factories consisfing of majority view held that sugarcane growers fall uncter a distinct cafegory different 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 rule of policy, disabte itself adoption of a general 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 ... 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 those of a certain class and then applications except proceeding to refuse an application before it in pursuance of such a resolution..." ' merits of individual cases. (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 is why a direction was statute which conferred the discretion and that 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 case. The policy behind the Act 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 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 'rt "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 will in accordance \with its policy decide against him, untess there is in his case ...... ifthe policy has something exceptional 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 distinction to be drawn between these two classes." (Emphasis supplied)

20.The Apex Court also relied on British Oxygen v. Minister of Technology, (1970) 3 Ail ER 165, holding that the House of Lords was in that case considering the provisions of the Industrial Devetopment Act, 1966. The Act provided for the Board of Trade making to any person a grant to\wards approved capital expenditure incurred by that person in providing new for carrying on a qualilying industrial process in the machinery or plant course ofthe business. After stating that the Board was intended to have a discretion and after examining the provisions of the Act the House of Lords came to the conclusion that the Board was not bound to pay grants to all a Pagellofl? &Q who are eligible nor did the provisions give any right to any person get a grant. After quoting the passage from the decision in R. v. Port ofiondon Authority, already referred to, Lord Reid went on to state: "But think that The aeneral the circumstances in which discretions are exercised vary enormously and that passage cannot be rule is that applied literally in every case. anvone who has to exercise_a statuton discretion must not 'shut (his) ears to the apDlication' (to auote from Bankes. there is anv areat difference LJJ._1 do not between a policv and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen'at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say—ofcourse 1 do not mean to say that there need be an oral hearing. In the present case the Minister's officers have carefulty considered all appellants- have had to say and 1 have no doubt that they will continue to do so. The Minister might at anytime change his mind and therefore 1 think that the appellants are entitled to have a decision whether these cylinders are eligible for grant." (Emphasis supplied) Viseount Dilhorne again after referred to the passage in R. v. Pori of London Authoriy, said: "Bankes, L.J. clearly meant in the latter case there is a refusal to exercise the discretion entrusted to the authority or tribunal but the distinction between a policy In this case it decision and a rule may not be easy to draw. was not chaltenged that it was within the power ofthe Board to adopt a policy not to make a grant in respect of such an item. That policy might equally well be described as a rule. It was both reasonable and right that the Board should make it was going to known to those interested the policy that follow. By doing so fruitless applications involving expense and expenditure of time might be avoided. The Board says It tn these circumstances it is not considered the appellants'. necessary to decide in this case whether, ifit had refusedto consider an application on the ground that it related to an item costing tess than £25,it would have acted wrongly. refused to consider any application. it has not J must confess that 1 feel some doubt whether the -words used by Bankes, L.J., in the passage cited above are really applicable to a case of this kind. It seems somewhat pointless and a waste of time that the Board should have to consider applications which are bound as a result of its policy decision to fail. Representations could of course be made that the policy should be changed." (Emphasis supplied) HHIIBS BflBIB^^ (;igi:; ^;^f it»Li'iit ^s \ Pagel2ofl7 li.E'Sii'eii 6\

21. The Apex Court further relied on Halsbury (Vol.1, 4th Edn. para 33 at page 35) in which it was held that: "A public body endowed with a statutory discretion may leaitimatelv adopt aeneral rules or principles of policv to auide itself as to the manner of exercisina its own discretion in individual cases, BrQvLded that such rules or Drinciples are jeaallv relevant to the exercise of its powers. consistent with the purpose of the enablina leaislation and not arbitrarv or it must not disable itself from capricious. Nevertheless, exercising a genuine discretion in a particular case directly interest, hence it must be prepared to involving individual consider making an exception to the general rule if the circumstances of the case warrant special treatment. These propositions, evolved mainly in the eontext of licensing and regulatory powers, have been applied to other of discretionary situations, investment grants and the allocation of pupils to different classes of schools. The amplitude of a discretionary power may, however, be so wide that the competent authority may be impliedly entitled to adopt a fixed rule never to exercise its discretion in favour of a particular class of persons; and such a power may be expressly conferred by statute." example, (Emphasis supplied) Court

22. If we look into the above decisions referred and relied upon by the Apex in the matter of Shri Rama (supra), while considering the fact whether in a particutar matter the Government has fettered its discretion while exercising the power under a particular law or not, required to interpret and decide that how the power vested in the authority has been exercised by taking into consideration the whole background of the Act and purpose behind it, and also while exercising the discretion a tribunal must not, by the adoption of a general rule or policy, disable itself from exercising its discretion in individual cases. The rule that it formulates the Court must not be based on considerations extraneous to those contemplated by the enabling act; otherwise it has exercised its discretion invariably by taking irrelevant consideration into account. The authority must not pre- determine the issue, as by resolving to refuse all applications or all applications of a certain class or applications except those of a certain class, and then proceeding to refuse an application before it in pursuance of such a decisibn. There are on the one hand cases where the tribunal in the honest exercise of its discretion has adopted a policy, and, w'thout refusing its policy is, and that after to hear an applicant, hearing him it wll in accordance wth its policy decide against him, unless there is something exceptional in his case. As Lord Reid obser/ed, the intimates to him what 1 fage td ol 17 ^L- general rule is that anyone who has to exercisea statutory discretion must not 'shut (his) ears to the application' (to quote from Bankes, L,J.). As per a public body endowed with a statutory discretion may Halsbury, legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in indivldual cases, provided to the exercise of its that such rules or principles are legally relevant powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. exercising a genuine discretion in a particular case directly involving individual interests. it must not disable itself Nevertheless,

23.0n the above principles, if we examine the present case with the background and objects of the Act and the Rules framed thereunder, Vbtilch prescribe eligibility criteria, procedure for appointment of Notary Public, removal and also inquiry about the misconduct under Rule 13 ofthe Rules, the purpose behind the Act was to appoint notaries for various functions to be exercised by them enumerated in Section 8 of the Act. The learned single Judge of the Kerala High Court in the matter of A. Gourisankar (supra) mentioned the background of the post of public notary. After the order of the learned single Judge of the Kerala High Court, the Division Bench judgment of Kerala High Court, and the Single Bench judgment of the Calcutta High Court, in the year 1992, a committee was constituted with a view to study all aspects relating to appointment of notaries and other matters relating to the administration ofthe Act. The said committee after making in-depth study ofthe Act and the Rules made thereunder submitted its recommendations on 30-9-1994. The objects and reasons of the 'five years', was replaced, amending Act No.36 of 1999 were brought among others w'th a viewto rationalize the procedure for renewal of certificate of practice of Notary Public. In Section 5 (1) (b) ofthe Act, in place of 'three years' thereby the period of certificate was increased from three years to five years. In sub-section (2) of Section 5 ofthe Act in place ofthe word 'shall', the word 'may' was replaced, and in the old Act, the words 'be entitled' were removed and the word 'renew" the certificate of practice of any Notary Public for a period of five years at a time was added; thereby the Goyernmeftt was given discretion in the matter of renewal of the certiflcate of practice as per the amended Act. As per the judgment of Kerala and Calcutta High Courts, earlier before amending the provisions of Section 5 ofthe Act, there was no discretion with the Government and the Government was bound to renew the certificate on application being made Pagel4ofl7 ^ by the concemed Notary Public. Therefore, by amending these provisions, the Government was vested with the power to exeroise its discretion for renewal and also to overcome the difficulty that earlier the Govemment was bound to renewthe certificate on an application bythe Notary Public.

24. In the light of the above objects and background of the Act, and in the light the amending Act, in other words, whether of the above decisions referred, now we have to examine as to whether by order dated 31-12-2002 passed by the Government of Chhattisgarh, which is said to be a pollcy decision ofthe Govemment not to renewthe certificate more than once, the Government has not disabled itselffrom exercising the discretion as per Government has put fetter on its discretion by the impugned order dated Ifwe look into the amended provisions of Section 5 (2) ofthe 31-12-2002. Act, the Central Government has simply amended the provisions in order to rationalize the procedure for renewal of the certificate of practice as Notary Public. The purpose behind it was to consider the case of each notary individually, wtiether his certificate is to be renewed or not. It was not the intention of the Legislature to introduce any policy or rule to completely bar a particular category of lawyers from getting their certificate renewed. The purpose behind the said amendment of the Act was that the Government while considering the renewal of certificate of notary is required to consider the case of each individual and find out \whether on merits, particular person is entitled for renewal of the certificate or he has disentitled himself for renewal of the certificate by his acts or deeds during the period when he was practicing as Notary Public, for example, on aceount of complaints against a Notary Public regarding his conduct or a particular Notary Public was not adhering the rutes and guidelines issued by the Government or he has conducted himself in such a way which disentitles him from renewal of the certificate or on account of any other disabillty the particular Notary is not able to discharge his functions. Therefore, the purpose behind this Act was to consider each individual case for renewal ofthe certificate ofNotary Public. Even after incorporating the amendment nothing was indicated in the Act or the Rutes that by any executive order the State will be entitled to debar all the Notaries from renewal of their certificates.

25. It is true that the provisions of removal and inquiry are already there in the instead of conductjng inquiry or sometimes when Act and the Rules, but even inquiry is not possible then atleast consider all those aspects which could be matter of inquiry and can refuse the Government is entitled to Pagel5ofI7 6^1 the renewal without resorting to detailed inquiry and wasting the time. But, to my mind, this was never the intention of the Legislature while amending the Act to create a bar that particular category of lawyers will not bs entitled The impugned to renew their certiflcates after such a short tenure. executive order issued by the State of Chhattisgarh, in the light ofthe above to my mind; amounts to fetter on the discretion of decisions, Government, Looking to the background of the Act and scheme of the Act, 10 years' period cannot be termed consistent \wth the Act and the scheme. It is mentioned in the impugned order and was also argued that the same has been issued just to give chance to more and more-Advocates. But, this is not the purpose with which the Act was enacted. Ifwe look into Section 8 of the Act, which describes the functions of Notary Public, it shows that wth the post of Notary Public, the element ofpublic interest is attached; in other is not a job-oriented post. The order impugned has no relevance words, it with the objects of the Act and it amounts to adoption of a general rule disabling itsetf from exercising discretion in individual cases, and the same is based on considerations extraneous to those contemplated in the amending act. The order impugned is hit by the general rule that while exercising the statutory discretion the authority must not shut (his) ears to the application. Even if it is a policy decision, but the same is arbitrary and capricious debamng all the tegal practltioners of particular category from getting their certificate renewed merely on the ground of completion often years tenure.

26.As per the principle mentioned in S.A. de Smith's Judtoial Review of Administrative Actton, the authority must not pre-determine the issue as by resolving to refuse "all applications of a certain class". A bare perusal of Rule 3 of the Rules indicates the intention of Legislature that how much importance has been attached to the Office of a Notary Public that one must have a standing of 10 years at the Barto become eligible which is the eligibility criteria for appointment of a Judge of the High Court. Not only this, as per scheme of the Rules before recommending an Advocate for appointment to the post of Notary Public, views of Bar Council & Bar Association by the authority is mandatory and one is appointed as such after lo^g exercise that too by clearing alt barriers. Keeping in mind the natureof duties assigned to Notary Public a great importance/sanctity has been attached with the Office of a Notary Pubtic. Also looking to the historical background ofthe Office ofNotary Public, the impugned executive order-dated 31-12-2002 ofthe State Government taying down that a Notary P^gel6ofl7 •r~ £$' Public cannot hold Office more than ten years, wfiich is a short period, is not conceivable to the principle of law, and the same is arbitrary and irratlonat.

27.As per the above referred decisions, the Government is required to consider each and every case on its merits, and for that purpose the Government can lay dovm a policy or rules, as to howthe certificate ofeach individual is to be considered and renewed or refused, and accordingly, the Govemment can devise the guidelines. But the orderimpugned is definitely predetermining the issue by resolving to refuse all applications or all applications of a certain class.

28.1ntheresult, a. W.P.No.3247/2003 (Chandra Prakash Sharma vs. State of Chhattisgarh and another) is allowed, and the order dated 31 December, 2002 is quashed. Consequently, the order refusing to renew certificate is also quashed. b. Consequently, on account of quashment of the impugned order dated 31^ December, 2002, which is the basis for refusat of renewal of certificates ofthe petitioners in W.P.Nos.494/2003, 1894/2003 and 624/2003, the orders refusing their renewal stand quashed and these petitions are also allowed. c. Perusal of W.P.No.1171/2003 filed by Prashant Kumar Thakur reveals that he was appointed as Notary Public in the year 1993 and his last application for renewal was refused on 26.12.2002. Perusal ofW.P.No.510/2003filed by Madan Lal Gupta reveals that initiaHy he was appointed as Notary Public on 30 May, 1992, and his last term expired on 29-5-2001; in the month of May, 2001, he applied for renewal and his renewal was refused on 23-12-2002. Perusal of W.P.No.1600/2003 filed by Anil Kumar Tiwari reveals that he was appointed as Notary Public on 22-7-1993, and his term was extended up to 21-7-2002, thereafter, he applied for renewat, but his renewal application was rejected vide order dated 26-12-2002 Therefore, the applications of the above three (Anhexure P-5). petitioners were rejected even before the policy decision taken by the Government i.e. 31-12-2002, whereas, the stand taken by the State in its return is that their applications were rejected on the basis the policy decision dated 31 December, 2002. Hence, i ii--. Pagel7ofl7 ^ ^ automatically, the order refusing their renewal is per see illegat and more over, the above three petitioners had not completed even ten years' practice as Notary Public. petitions (W.P.Nos. 1171/2003, 510/2003 & 1600/2003) are also allowed, and the orders refusing renewal of their certificates to practice as Notary Public are quashed. In the circumstances, <» d. The State Government the case of the petitioners as an individual ease on their own merits, and decide the same in accordance with law. is directed to consider e. In the circumstances, 1 make no order as to costs. •-"s. , Sd/- L.C.BHADOO Judge