Malik GHIAS-UD-DIN vs GOVERNMENT OF PAKISTAN through Secretary
This matter arises from a petition concerning the appointment of Notaries Public under the relevant statutory framework. The core legal questions involve whether the West Pakistan Notaries Rules, 1965 are ultra vires the Notaries Ordinance, 1961 by restricting appointments solely to legal practitioners with five years of practice while excluding other persons, and whether the Notaries Ordinance, 1961 could override section 138 of the Negotiable Instruments Act (XXVI of 1881). The Supreme Court of Pakistan held that the petition should be allowed and leave granted to thoroughly examine and resolve these questions regarding statutory conflict and rule-making authority.
- Whether the provisions of the West Pakistan Notaries Rules, 1965 denying appointment as Notaries to persons other than legal practitioners are ultra vires the Notaries Ordinance, 1961?
- Whether the provisions of the Notaries Ordinance, 1961 could override the provisions of section 138 of the Negotiable Instruments Act (XXVI of 1881)?
- Section 138, Negotiable Instruments Act 1881
- Section 3, Notaries Ordinance 1961
- West Pakistan Notaries Rules 1965
ORDER
' KHALIL-UR-REHMAN RAMDAY, J.--- The provisions of section 138 of the Negotiable Instruments Act (XXVI of 1881), authorize the Federal Government to appoint "any person" (emphasis is ours) by name or by virtue of his office to be a Notary Public under the said Act. The President of Pakistan issued Ordinance No,XIX of 1961 on 14-6-1961 being the Notaries Ordinance, 1961, which permitted a Provincial Government to appoint, as Notaries, "Legal practitioners or other persons" who possessed such qualifications as were to be prescribed by the rules. This Ordinance was followed by the West Pakistan Notaries Rules, 1965 gazetted on 5-1-1966 which, inter alia prescribed qualification for appointment as Notary. The said provisions of the said Rules envisage appointment as Notary only of a person who has a legal practice of at least five years. Meaning thereby, that "other persons" whose appointment as Notaries was envisaged by section 3 of Ordinance XIX of 1961 in addition to the legal practitioners had been deprived by these Rules of the right which the said Ordinance had conferred upon them.
2. The question which requires determination is whether the provisions of the West Pakistan Notaries Rules, 1965 to the extent that they denied the right of appointment as Notaries to persons other than the legal practitioners as envisaged by the Ordinance of 1961 were offensive and consequently ultra vires of the provisions of the said Ordinance, of 1961.
3. Another question which would also require examination is that the Negotiable Instruments Act (XXVI of 1881) was a special law vis-a-vis the Promissory Notes, Bills of Exchange, Cheques etc. And the appointment of Notaries Public in the said connection. The issue would be whether the provisions of Ordinance XIX of 1961 could override the provisions of section 138 of the Negotiable Instruments Act (XXVI of 1881).
4. To resolve these questions, we allow this petition and grant leave for the said purpose.