Reply To: Functions of notaries under Indian Notaries Act-1952

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Notarial appointment is not a Post of Profit

Their Lordships of the Orissa High Court in Nityananda Behera v. State of Orissa, AIR 1997 Orissa 1 as well as the Allahabad High Court in Kashi Prasad v. State, AIR 1967 All 173 (V 54 C 55) Lucknow Bench that the prerequisite for appointment of a ‘Notary’ is — one must be an Advocate by profession with prescribed experience at Bar.

A notary is neither paid a monthly salary nor any fees by the Government. The fee that is paid to him is not by the Government, but by the individual client whom he serves. He renders no service to the Government in the discharge of its sovereign functions or in its carrying on the civil administration of the State. He is not bound by the Government Servants’ Conduct Rules, He has not to apply for leave if he wants to leave the station or does not want to attend to his work on a particular day.

‘6. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government. (See Abdul Shakur v. Rikhabchand, AIR 1958 SC 51 (sic). An office has to be held under someone for it is impossible to conceive of an office held under no one, For holding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant between them. (See Gurgobinda Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254. The office in question must be held under a Government and to that some salary, emoluments or other allowance are attached. For finding out whether an office in question is an office under a Government and whether it is an office of profit, the relevant tests would be

(1) Whether the Government makes the appointment?

(2) Whether the Government has the right to remove or dismiss the holder?

(3) Whether the Government pays the remuneration?

(4) What are the functions of the holder? Does he perform them for the Government? and

(5) Does the Government exercise any control over the performance of those functions? This test was indicated by the apex Court in Shivamurthy Swami v. Sangamna Andanappa, (1971) 3 SCC 870. The word ‘profit’ connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carried any profit. (See Rarbhari Bhimaji Rohamare v. Shanker Rao Genji Kolhe, AIR 1975 SC 575).

There exists no relationship of master and servant between the State Government and him. The duties assigned to him are of a professional nature. Functions of a notary are indicated in Section 8 of the Act, A notary carries on a profession and is not in the employment of any one including the State Government as evident from the preamble of the Act which reads that the Act is to regulate the profession of notaries. The fact that a notary carries on profession as evident from Section 10(d) of the Act, it refers to profession and other misconduct. Judged in the aforesaid background, it cannot be held that a notary holds an office of profit.