Heard Mr.Rajasekaran, learned counsel for the petitioner and Mr.R.Murali, Government Advocate appearing for respondents, who has made his submissions on instructions from the respondents.
2. The petitioner, who is a practicing advocate, was originally appointed as Notary on 20.3.1997 for a period of three years. It is stated that in the year 1999 there was an amendment made to the Notaries Act by which the Government is empowered to make appointment of a Notary for a period of five years. At the time when the petitioner was originally appointed as Notary, he was living at No.31, Srirampet, C.I.T.Nagar, Chennai 600 035 and he shifted his residence and office to No.20-B, South Dandapani Street, T.Nagar, Chennai 600 017 on 21.2.2000.
3. It is stated that the petitioner has made an application for renewal in the year 2000 and the Government passed G.O.Ms.No.77, Law (Administration) Department, dated 24.3.2000 renewing the petitioner's certificate of practice for a period of three years. Therefore, as per the renewal order dated 24.3.2000, the petitioner should have renewed his certificate of practice during March, 2003.
4. It is, no doubt, true that in the meantime by virtue of the amendment which has been brought to the Notaries Act, the Government is empowered to renew the period of certificate of practice for five years and in spite of it in the year 2000, the renewal was granted for three years only. However, the petitioner cannot take a stand that he was under the impression that based on the amendment, renewal should be given for five years and therefore, he has not seen the letter of renewal of the certificate of practice. There is certainly a duty on the part of the petitioner as a responsible officer of the Court, designated as a Notary, to see that the three years period for which renewal of certificate of practice was granted on 24.3.2000 has expired.
5. It is seen that the petitioner has made a renewal application to the respondents only on 25.7.2006. The reason given for the delay in preferring the application is not only that the petitioner was under the impression that after the amendment his appointment should be for five years, but also that in the meantime the petitioner had to undergo Ph.D. Course and he was appointed as Central Government counsel and therefore, according to the petitioner, by oversight he has not taken steps to make an application within the time stipulated.
6. A reference to the letter dated 2.11.2007 of the second respondent shows that the second respondent has taken note of the application of the petitioner dated 25.7.2006 for renewal which also contains the reason for the delayed filing of application. In the said letter it is also stated that the petitioner has not taken steps to renew the certificate of practice granted on 24.3.2000 after the expiry of three years and a show cause notice was given to him and there was no reply and ultimately, by order dated 23.9.2004, the notary permission granted to the petitioner was cancelled and the petitioner's name was removed from the Register of Notaries. The second respondent, therefore, observed that there was no question of considering the application for renewal dated 25.7.2006. In the said letter letter dated 2.11.2007 enclosing the order dated 23.9.2004 regarding the removal of the petitioner's name from the Register of Notaries, it is stated that the order dated 23.9.2004 was sent to the petitioner's address and the same has been returned with a postal endorsement "left". It was after receiving the said letter dated 2.11.2007 along with the impugned government order in G.O.Ms.No.254, dated 23.9.2004, the present writ petition came to be file and subsequently, the petitioner filed M.P.No.1 of 2009 for amendment of prayer for the purpose of a consequential direction to consider and renew the application of the petitioner dated 25.7.2006. This M.P.No.1 of 2009 is ordered as prayed for.
7. On fact, it is not in dispute that the removal order which is impugned in this writ petition dated 23.9.2004 has been sent to the petitioner's original address at No.31, Srirampet, C.I.T.Nagar, Chennai 600 035 and therefore, the same has been returned as "left". It is the admitted case of the respondents that the change of address of the petitioner from the above said address to No.20-B, South Dandapani Street, T.Nagar, Chennai 600 017 has been effected as early as in the year 2000 and that is evidenced from the fact that even the renewal order dated 24.3.2000 has been communicated to the petitioner to his changed address at No.20-B, South Dandapani Street, T.Nagar, Chennai 600 017. Therefore, there is a mistake committed by the respondents in communicating the order of removal dated 23.9.2004 to the correct address of the petitioner, but that is not a ground for the petitioner to have excuse in not filing the application for renewal of certificate of practice in the year 2003, namely after the completion of three years from the date of original renewal dated 24.3.2000.
8. Nevertheless, the renewal application of the petitioner dated 25.7.2006 has not been considered by the respondents on merit even though a reference has been made in the letter of the second respondent dated 2.11.2007. The reasons given by the petitioner for filing the application for renewal with delay has not been considered. It is not a case of misconduct on the part of the petitioner and the consequential removal. In the absence of such misconduct which has been attributed to the petitioner, especially after Rule 8(B) of the Notaries Rules was amended which was given effect to from 31.10.2007, the Government is certainly empowered to consider the reason for the delay and condone the same by relaxing the conditions. By virtue of the amendment which came into force to Notaries Rules, 1956 with effect from 31.10.2007, Rule 8(b) of the Rules is as follows:
"The certificate of practice issued under sub-rule (4) of rule 8 may be renewed for a further period of five years on payment of prescribed fee. An application for renewal of Certificate of Practice shall be submitted to the appropriate Governance before three months from the date of expiry of its period of validity:
Provided that the appropriate Government may, after considering that the reasons stated in the application, relax the condition of submission of application for renewal of certificate of practice before the above specified period."
9. It is true that before the Rule came into force there was no power vested with the Government under the Notaries Rules for relaxing the conditions for submission of the application for renewal, but after 31.10.2007 such power is available with the Government.
10. Under similar circumstances, I had an occasion to deal with a case in D.Arivazhagan v. The Government of Tamil Nadu, rep. by its Secretary, Law Department, Chennai 600 009 (Order dated 11.9.2009 in W.P.No.18577 of 2009), wherein by referring to the amended provisions of the Notaries Rules, it was held that by virtue of the amendment, the Government is empowered to relax the conditions and such power must be liberally exercised, except in cases of misconduct. That was also the view of this Court in M.A.Mohammed Ibrahim v. Secretary to Government, Law Department (Admn.), Chennai, 2009 (3) CTC 490.
11. In such circumstances, the impugned order of the second respondent dated 23.9.2004 stands set aside and the matter is remanded to the second respondent for a fresh consideration of the application of the petitioner dated 25.7.2006 in the light of the amended provisions of the above said Notaries Rules and pass appropriate orders on merits and in accordance with law. Such order shall be passed by the second respondent within a period of twelve weeks from the date of receipt of a copy of this order. It is made clear that the petitioner shall be eligible to be treated as a Notary only after the order passed by the Government within a period stipulated herein.
This writ petition is ordered accordingly. No costs.
8.12.2009 Index : Yes Internet : Yes sasi To:
1. The Chief Secretary to Government of Tamil Nadu Secretariat, Fort St.George Chennai 600 009.
2. The Secretary to Government of Tamil Nadu, Law Department Fort St.George, Chennai 600 009.
P.JYOTHIMANI,J.
[sasi] W.P.No.3779 of 2008 8.12.2009