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

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#121961
advtanmoy
Keymaster

Notary holds no civil post

In Phagu Ram vs. State reported in AIR 1965 Punjab 220, H.R. Khanna, J. (as His Lordship then was) observed as under:

“4. The question as to what should be the true test to determine as to whether a person holds a civil post under the State or the Union was gone into by a Full Bench of Allahabad High Court in Mohammad Ahmad Kidwai v. Chairman, Improvement Trust, Lucknow, AIR 1958 All 353, While deciding that an employee of Improvement Trust does not hold a civil post under the State, the Court held ­ “The true test to determine whether a person held a civil post under the Crown as contemplated by S. 240 of the Government of India Act or was a member of a Civil service of the Union or the State or held a civil post under the Union or the State has primarily to be determined in relation to the functions which he performed. If his duties relate to activities which fell directly within the sphere of the Union or the State and his services were under the direction and control, as also his appointment was by either the Union of the State, then he could fall under those services which were contemplated by either S. 240 of the Government of India Act or by Art. 311 of the Constitution of India, but if the sphere of activity of the employee fell within the sphere of activity of a local authority constituted under some Statute having a separate legal existence, then the position of that employee, even though the State or the Union controlled some of his activity and gave him direction in the discharge of his functions fell outside the scope of either S. 240 of the Government of India Act or Art. 311 of the Constitution of India.

Keeping in view the criteria laid down above and also taking into consideration the function of a notary, he cannot, in my opinion, be deemed to hold a civil post. It is no doubt true that a notary is appointed under the Act and his name can be removed by the Government from the Register of notaries, the fact remains that the functions performed by him are such as do not relate to activities which fall directly within the sphere of the Union or the State. The essential function of a notary is to bestow an impress of authenticity upon certain acts performed by him under the Act and in order to afford facility to the general public for securing such authenticity, notaries are appointed. Such a facility can be availed of by the general public on payment of certain fees which have been specified in the Rules under the Act, and it is significant that the fees go to the pocket of the notary and not to the coffers of the Government. The Government only gets revenue in the shape of stamps which have to be affixed according to law for notarial acts. No doubt a notary is appointed by the Government but he gets no salary from the Government and the duties performed by him fire normally not such as keep him fully occupied. Taking into account all the factors I am of the opinion that it would be stretching the meaning of the words too far to hold that a notary holds a civil post to whom Art. 311 applies. The Act, as its preamble goes to show, has been acted to regulate the profession of notaries, and the different provisions, contained in the Act, do not warrant the inference that a notary holds a civil post.”