NITYANANDA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner calls in question legality of decision of the Government of Orissa, in Food Supply and Consumer Welfare Department holding that as a notary he held an -office of profit, and therefore, was ineligible to hold full-time office of the President of District Consumer Disputed Redressal Forum of Mayurbhanj district (in short 'the District Forum').

(2.) A brief reference to the factual aspects would suffice before we deal with the pivotal question, whether a notary holds an office of profit, thereby becoming ineligible to hold full-time office of the President, Consumer Forum.By a notification dated 3-4-1995 issued under sub-sections (I) and (IA) of Section 10 of the Consumer Protection Act, 1986 (in short, 'the Act'), petitioner was designated as President of the District Forum of Mayurbhanj district. He was required to furnish affidavit as per sub-rule (5) of Rule 3 of the Orissa Consumer Protection Rules, 1988 (in short 'the State Rules'). It was indicated that appointment was subject to verification of political activity. After the notification, the Director, Consumer Affairs by letter dated 7-4-1995 (Annexure-3) intimated the petitioner the terms of his appointment with reference to sub-rule (5) of Rule 3 of the State Rules. The petitioner was asked to furnish an affidavit to the effect that he does not and shall not have membership of any political party or any Communal Organisation; and have any financial or other interests as are likely to affect prejudicially his functions as a member of the Forum. He was also required to furnish an undertaking that he shall not practise in the Court of law during the tenure of his appointment. Petitioner wrote a letter on 24-4-1995 to the Government to permit continuance as Notary while holding full-time office as President. Same was turned down by the Government vide letter dated 6-6-1995, copy of which is annexed as Annexure-2 to the writ application. It was indicated in the said letter that under Rule 10 of the Notaries Rules, 1956 (in short, 'the Rules') different fees are payable to a notary for doing different notarial work and the post held by him is an office of profit, and therefore, his request to continue as notary while holding the full-time office of the President of the Consumer Forum was not accepted. Petitioner requested the authorities to consider his case afresh as according to him a notary does not hold an office of profit. As the petitioner's representation for reconsideration of the view expressed by the authorities did not yield any result, and he was telegraphically required to intimate whether he had resigned from the post of Notary he has filed this writ application for interference.

(3.) According to learned counsel for petitioner, by functioning as a notary, the petitioner does not hold any, office of profit and therefore, the view expressed by the authorities cannot be maintained. According to Mr. K. Patnaik learned Additional Government Advocate Rule 3(6)(g) and Rule. 3(5)(b) of the State Rules, refer to financial or other interests which are likely to affect prejudicially a person's functioning as a member of the Forum. Since the petitioner was undisputedly receiving certain amounts as fees. payable under Rule 10 of the Rules, the authorities have rightly held that the petitioner was not entitled to function as President of the District Forum, while functioning as a notary. Additionally it is submitted that the petitioner was required to furnish an undertaking that he shall not practise in the Court of law during the tenure of his appointment. Since the petitioner ceases to be an advocate, during the period he cannot function as a notary and therefore, the question whether by functioning as a notary he holds an office of profit is merely academic. By way of reply, it was submitted by learned counsel of the petitioner, that the said reason had not been indicated by the authorities.