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  • #121957 Reply
    advtanmoy
    Keymaster

    Functions of notaries (1) A notary may do all or any of the following acts by virtue of his office; namely:— (a) verify, authenticate, certify or atte
    [See the full post at: Functions of notaries under Indian Notaries Act-1952]

    #121959 Reply
    advtanmoy
    Keymaster

    Removal of names of Indian Notaries from Register.

    The Government appointing any notary may, by order, remove from the Register maintained by it under section 4 the name of the notary if he

    (a) makes a request to that effect; or

    (b) has not paid any prescribed fee required to be paid by him; or

    (c) is an undischarged insolvent; or

    (d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practise as a notary; or

    (e) is convicted by any court for an offence involving moral turpitude; or

    (f) does not get his certificate of practice renewed.

    #121960 Reply
    advtanmoy
    Keymaster

    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.

    #121961 Reply
    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.”

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