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T.A Abdul Kadir v. Union Of India And Others

Kerala High Court

Oct 22, 1998

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

The petitioner is a Notary Public appointed by the Government of Kerala under Rule 8 of the Notaries Rules, 1956. The petitioner challenges a restriction imposed by the first respondent on the authority of notaries public to attest a specific affidavit (Annexure-F) contained in the Passport Information Booklet (Ex. P1). The Passport Information Booklet requires that Annexure-F affidavits be attested only by a Magistrate, whereas other specimen affidavits may be attested by a notary public. The petitioner contends that this restriction is contrary to the provisions of the Notaries Act and Rules and seeks to have it struck down. The respondents, in their counter-affidavit, clarify that Annexure-F does not form part of the information booklet attached to Schedule III of the Passport Rules, 1980, and do not explain the basis for the restriction.

Legal Issues Presented

Whether the restriction imposed by the first respondent that Annexure-F affidavits in the Passport Information Booklet must be attested only by a Magistrate and not by a notary public is valid under the Notaries Act, 1952, and the Notaries Rules, 1956.
Whether such a restriction violates Articles 14 and 19(1)(g) of the Constitution of India by being discriminatory and interfering with the right to practice a profession.

Arguments of the Parties

Petitioner’s Arguments

The restriction that Annexure-F affidavits must be attested only by a Magistrate is uncalled for and inconsistent with the Notaries Act and Rules.
The Notaries Act and Rules authorize notaries public to prepare and attest affidavits, including those like Annexure-F.
The restriction violates Articles 14 and 19(1)(g) of the Constitution as it discriminates against notaries and interferes with their right to practice their profession.
The restriction should therefore be quashed, and notaries public should be entitled to attest Annexure-F affidavits.

Respondents’ Arguments

The passport application form and the information booklet form part of Schedule III of the Passport Rules, 1980.
Annexure-F does not form part of the information booklet attached to Schedule III of the Passport Rules.
The respondents do not clarify the basis or circumstances under which the restriction on notaries attesting Annexure-F is imposed.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court noted that the Notaries Act, 1952, and the Notaries Rules, 1956, expressly authorize notaries public to prepare and attest affidavits. The Passport Information Booklet restricts Annexure-F affidavits to be attested only by a Magistrate, which is inconsistent with the statutory authority granted to notaries. The court observed that the respondents failed to clarify the legal basis for this restriction or why Annexure-F should be treated differently from other affidavits. The court found that such a restriction is discriminatory and violates Articles 14 and 19(1)(g) of the Constitution by unjustifiably limiting the right of notaries to practice their profession. Consequently, the court concluded that the restriction is unlawful and liable to be quashed.

Holding and Implications

The court quashed the restriction imposed on notaries public from attesting Annexure-F affidavits in the Passport Information Booklet.

It was declared that notaries public are entitled to attest Annexure-F affidavits. The decision removes the discriminatory limitation on notaries’ authority in this context. No new precedent was established beyond the direct effect of invalidating the restriction and affirming the statutory rights of notaries public under the Notaries Act and Rules.

Show all summary ...

Petitioner is a Notary Public appointed by the Government of Kerala under Rule 8 of the Notaries Rules, 1956.

2. The functions of a Notary is enumerated in Section 8 of the Notaries Act, 1952. Among others a notary is authorised to administer oath to, or take affidavit from, any person as per Section 8(e) of the Notaries Act, Rule 11(8) of the Notaries Rules also authorises a notary to prepare and take affidavits for various purposes for his notarial acts.

3. Ex. P1 is the Passport Information Booklet which contains a specimen affidavit to be submitted by illiterate applicants as proof of date of birth in case no other document mentioned at Para 4(b) of the instruction booklet is available. At the bottom of the affidavit, a note is appended which shows that the affidavit is to be attested by a Magistrate. Whereas, regarding other specimen affidavits there is no such restriction. Those could be attested by a notary public also.

3A. Petitioner challenges the restriction imposed by the first respondent on the notary public regarding attestation of the affidavit contained in Annexure F to Ext. P1. According to him, such a restriction is uncalled for and is against the provisions of the Notaries Act and Rules and hence, the restriction should be struck down.

4. In the counter-affidavit filed by the 4th respondent, it is stated that the passport application form and the information booklet attached to it is a part of Schedule II to Passport Rules, 1980. On going through the Passport Rules, 1980. On going through the Passport Rules, 1980 it is seen that the passport application form is part of Schedule III of the Passport Rules, 1980. The information booklet attached to the passport application form is also part of Schedule III. But Annexure F of Ext. P1 does not form part of the information booklet attached to Schedule III of the Passport Rules.

5. It is not clear under what circumstances such a restriction is imposed regarding attestation of Annexure-F by the notary public. It is also not clear why Annexure-F is to be attested by a Magistrate only and not by a notary public.

6. When the Notaries Act and Rules permits a notary to prepare affidavits and attest the same, there could be no prohibition for the notaries in attesting an affidavit like Annexure-F. Such a restriction imposed is violative of Articles 14 and 19(1)(g) of the Constitution of India, as it is discriminatory and interferes with the right to practice any profession and hence, it is liable to be quashed.

7. In view of what is stated above, the restriction imposed in Annexure-F of the Passport Information Booklet prescribed as per Schedule III to Passport Rules, 1980 on the notary public attesting the affidavit is quashed. It is declared that notary public also is entitled to attest Annexure-F attached to the passport information booklet.

The Original Petition is allowed as above.

Petition allowed.