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Notaries Operating From Cars & Taxis Lowering Dignity Of Legal Profession: Bombay HC Expresses Anguish

Sharmeen Hakim
18 Feb 2022 3:43 PM GMT
Notaries Operating From Cars & Taxis Lowering Dignity Of Legal Profession: Bombay HC Expresses Anguish
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"Legal Profession Cannot Be Allowed To Function From The Streets"- Bombay High Court Recommended That Notaries Be Provided With Designated Premises

In a significant order, the Bombay High Court has taken strong exception to several instances of malpractices by Notaries, ordered them to pay costs while also directing the Department of Legal Affairs to consider certain recommendations to the draft Notaries (Amendment) Bill, 2021. The bench of Justices SJ Kathawalla and Milind Jadhav, which was hearing a clutch of petitions,...

In a significant order, the Bombay High Court has taken strong exception to several instances of malpractices by Notaries, ordered them to pay costs while also directing the Department of Legal Affairs to consider certain recommendations to the draft Notaries (Amendment) Bill, 2021.

The bench of Justices SJ Kathawalla and Milind Jadhav, which was hearing a clutch of petitions, further observed how Notaries were operating from private cars and taxis outside the Bombay High Court and said "legal profession cannot be allowed to function from the streets."

The bench noted the most common form of malpractice is notarising documents without the concerned person's presence or signature, defeat[ing] the very purpose for which a document is required to be notarized. "It is distressing to note that in some cases, even Advocates support such illegal practices..", the Court noted.

The Notaries (Amendment) Bill, 2021 proposes digitization of the records of a Notary and will be the most significant amendment to the Act since its inception in 1952.

Regarding Notaries operating from cars the court annexed photographs "which show to what extent the legal profession has degraded causing anguish not only to the judiciary but also lowering the dignity of the profession in the eyes of general public / common man."

It recommended that Notaries be provided designated premises near the HC without having to bear costs of rent, etc.

"In any event though we have full sympathy for the Advocates who do not have their offices of their own to function from, we do believe that the dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets."

"We are also not able to understand how the Municipal Corporation of Greater Mumbai (MCGM) and also the Appropriate Authority have not taken any action till date in regard to the abovementioned functioning of Advocates and Notaries from parking areas and streets manned by the MCGM", the Court further observed.

"It cannot be disputed that Notaries perform notarial acts around the vicinity of Courts in India. The presence of Notaries in close proximity of Courts is essential and ought to be recognized. Therefore, it is recommended that Notaries be provided with a designated place in and around the premises of Courts without Notaries having to incur the costs towards purchasing / renting an office / chamber".


The Bombay High Court passed the order disposing off a clutch of petitions, including a suo-motu contempt petition.

The HC came across a batch of matters wherein instances of mischief by notaries came to light. In one matter a notary notarised an appeal on October 12, 2021 when the order being challenged was only uploaded/made available on October 13, 2021.

It accepted the unconditional and unqualified apology tendered by Advocate Javed Akhtar Khan, as well as Notary Sandeep Shah and directed them to pay Rs.2000 each to the State Legal Aid Fund, Maharashtra State Legal Services Authority within four days. A similar direction was passed for Notary SM Naqvi.

During proceedings, the court had appointed Advocate Nausher Kohli as amicus curiae who submitted his list of recommendations based on discussions during the hearings for amendments to the Notaries Act.

The recommendations include-

USE OF TECHNOLOGY :

1. In addition to providing for digitization and automation of notarial work undertaken by Notaries, the proposed Application / Portal must furnish an updated data-base of details of Notaries registered under the Act, which can be checked by the public.

2. In-built mechanism preventing a person from carrying out a notarial act unless such person is duly registered under the Act.

3. Facility to upload biometric identifiers, such as a fingerprint scan to confirm the presence of the signatory before a Notary, and Geo tagging.

It also recommends amending the form XV maintained by the notary to include no. of pages, exhibits, venue of notarization etc.

IMPLEMENTING PRACTICES FROM FOREIGN JURISDICTIONS :

The United States of America has enabled notaries to notarize documents remotely by a facility called 'Remote Online Notarization' ("RON"). The process provides for remote notarization of documents using a video conferencing software such as Zoom and Cisco Webex.

 RIGHT TO PRIVACY :

Whilst amending the Act and Rules, additional responsibilities must be cast on Notaries to ensure safekeeping and protection of the sensitive and confidential data with which they are entrusted with.

MANDATORY ISSUANCE OF A RECEIPT FOR THE FEES CHARGED BY A NOTARY :

Provide for means to make online payments to Notaries. Further, the proposed Application / Portal must mandatorily issue an electronic receipt for every notarial act undertaken.

"We have considered the submissions of the Learned Amicus Curiae Mr. Kohli and have given due consideration to his comprehensive Report covering the prevalent law in India and the recent developments across the World, including in the United States of America. In our considered opinion, undoubtedly, the Act and Rules framed thereunder are in pressing need for major reform. We are, on a daily basis, coming across matters wherein Notaries, Advocates and Parties are mischievously getting documents notarized. However, we are now pleased to note that the Draft Bill has been published proposing digitization of the records of a Notary and digitization and automation of notarial work undertaken by Notaries. We would like to believe that by the use of Information Technology, the prevalent mischief will be reduced to a great extent," the bench observed while directing the Registrar General to forward the order and recommendations to the Department of Legal Affairs.

Case Title: Dhanlaxmi Chandu Devrukar vs The Town Planning

Citation: 2022 LiveLaw (Bom) 37

Click Here To Read/Download Judgment



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