Designated Competent Authority.
The Notaries Act, 1952, is an Act to regulate the profession of Notaries. A Notary or a Notary Public is a public officer whose function is to administer oaths, to attest and certify, by his hand and official seal, certain classes of documents, in order to give them credit and authenticity, to take acknowledgements of deeds and other conveyances, and certify the same, and to perform certain official acts, chiefly in commercial matters such as the protesting of notes and bills, the noting of foreign drafts, and marine protests in cases of loss or damage. The Notaries Act is administered by the Central as well as State Governments. Section 3 of the Notaries Act provides that the Central Government for the whole or any part of India and State Government, for the whole or any part of the State, may appoint Notaries and legal practitioners or other persons who possess such qualifications as may be prescribed. The qualifications for appointment as a Notary as prescribed by Rule 3 of the Notaries Rules, 1956 reads as follows: "No persons shall be eligible for appointment as Notary unless on the date of the application for such appointment-
1. He had been practicing at least for ten years as a legal practitioner; or
2. He had been a member of the Indian Legal Service under the Central Government; or
3. He had been at least for ten years-
i. a member of Judicial Service; or
ii. held an office under the Central Government or a State government requiring special knowledge of law after enrolment as an advocate; or
iii. Held an office in the department of Judge Advocate General or in the legal department of the armed forces.
As per Rule 4 of the Notaries Rules, 1956, a person may make an application for appointment as a notary(hereinafter called 'the applicant'),through the District Judge concerned or the Presiding Officer of the Court or Tribunal where he practices as an Advocate, in the Form of Memorial addressed to such officer or authority of the appropriate Government as that Government may, by Notification in the Official Gazette, designate in this behalf.
1. Memorial should be countersigned by a Magistrate, a Manager of a Nationalised Bank, a merchant and two prominent inhabitants of the area where he intends to practice as a Notary(designation seal and office seal of the above officials should be affixed).
2. Court Fee stamp worth Rs.5/- and a recent passport size photograph of the applicant should be affixed in the Memorial.
3. Attested photocopies of the following Certificates should be enclosed with the Memorial:-
1. SSLC Book(page showing date of birth only)(b) LL.B Degree Certificate(c) Enrolment Certificate(d) Certificate (in original) from the Bar Association concerned showing experience of the applicant as a Lawyer.
Fees for issue and renewal of Certificate of Practice and Extension of Area
Fees Head of Account
(a) Issue of Certificate of Practice Rs.2000/- 0070-01-800-95
(b) Extension of area of practice Rs.1500/- 0070-01-800-95
(c) Renewal of Certificate of Practice Rs.1000/- 0070-01-800-95
(d) Issue of duplicate Certificate Rs.750/- 0070-01-800-95
Functions of Notaries.
1) A Notary may do all or any of the following acts by virtue of his office, namely:-
1. Verify, authenticate, certify or attest the execution of any instrument;
2. Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
3. Note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (XXVI of 1881), or serve notice of such notice or protest;
4. Note and draw up ship’s protest, boat’s protest or protest relating to demurrage and other commercial matters;
5. Administer oath to, or take affidavit from, any person;
6. Prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
7. Prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is entitled to operate;
8. Translate, and verify the translation of, any document, from one language into another;
i) Act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;
j) Act as an arbitrator, mediator or conciliator, if so required;
11. Any other act which may be prescribed.
Procedure for the appointment of Notary.
An application (Memorial) for the appointment of Notary may be addressed to the Officer designated by the appropriate Government as “Competent Authority” under the Notaries Act and Rules. The application should be in the form prescribed under the Notaries Rules, 1956. This should go to the first phase.
Appointment of Competent Authority.
As per rule 4(1) of the Notaries Rules, 1956, Government may appoint an Officer not below the rank of a Joint Secretary as Competent Authority of the appropriate Government by Notification. The application (Memorial) for appointment of Notary may be addressed to the Competent Authority.
The procedure for appointment of Notary involves the following namely:-
1. Scrutiny of the application,
2. Verification of credentials of the applicant from the Bar Council of Kerala,
3. Local enquiry and office inspection conducted by the Competent Authority so as to assess the eligibility to get appointment.
4. Interview of the applicant for assessing the competency.
The Memorials are being verified in the Law Department as a first step. Therefore, the credentials of the applicants are obtained from the Bar Council. The Bar Council is enquired as to whether the name of the applicant is still on the roll of Advocates maintained by it and whether any disciplinary action is pending against the applicant. After getting NOC from the Bar Council, the applications are submitted to the “Competent Authority” for conducting local enquiry and inspection of offices of the applicant. During the inspection the Competent Authority has to ascertain, the functioning of offices, Library facility in his office, number of cases conducted by the applicant, etc and local enquiry upon his character and antecedents.
After the local enquiry and office inspection the Competent Authority have to submit his report stating that whether the applicant is recommended for interview or not. The Competent Authority has also to report the area for which the applicant is recommended for appointment. On the basis of the recommendation of the Interview Board, the file may be submitted to the Government for orders as to the placing before the Interview Board.
The next stage of procedure under the Notaries Act and Rule is the interview of the applicant by the interview board constituted under Rule 7A of the Notaries Rules 1956. The Interview Board consists of the Chairman and two Members, who are officials of the Law Department. After conducting the interview, the Board may submit its report whether the applicant is competent or not for getting appointment as Notary.
The applicants who are recommended by the interview board are appointed in the areas after considering the needs of the locality and the vacancy.
Extension of area of practice of Notary
As per Rule 8A of the Notaries Rules 1956, a Notary who holds a valid Certificate of Practice can apply for extension of area of practice. The Government after considering the grounds stated in the application and other factors, pass appropriate orders on the application.
Renewal of Certificate of Practice
Generally a Certificate of Practice is issued with validity for a period of five years from the date of issue of the same. An application for renewal of Certificate of Practice may be submitted before six months from the date of expiry of the Certificate of Practice. After considering the application, the Government may renew the Certificate of Practice.
Disciplinary Proceedings against Notaries
All disciplinary proceedings against the professional and other misconduct of the Notaries are being dealt with in this Department. The disciplinary proceedings against Notaries are mentioned in Rule 13 of Notaries Rules of 1956. The Government can initiate disciplinary proceedings against a Notary either suo motu or on a complaint received in Form No. XIII. Every disciplinary action, if found that there is prima facie case against such Notary ends with any of the following:
i. Cancelling the certificate of practice and perpetually debarring the Notary from practice
ii. Suspending him from practice for a specified period;
iii. Letting him off with a warning, according to the nature and gravity of the misconduct.
Publication of Annual List of Notaries
As per Section 6 of the Notaries Act, 1952 read with rule 17 of the Notaries Rules, 1956, the Government shall publish the list of Notaries appointed by the Government and who are in practice during the 1st day of every year. The List of Notaries appointed by the Government and who are in practice as on 01.01.2014 is appended here with as Appendix II. List of Notaries as on 01.01.2015 is getting ready for publication in the Official Gazette and will be updated soon.