Hon'ble Anant Kumar,J.
O R A L
1. Jawahar Lal Misra has filed this petition to seek issuance of a writ in the nature of certiorari quashing order Annexure-1 passed by respondent no.1, State of U.P. through Principal Secretary/Law and Justice,Uttar Pradesh Secretariat, Lucknow.
While exercising powers under Section 10 of The Notaries Act, 1952 (for short 'Notaries Act'), the petitioner has been removed from the register of notaries maintained under Section 4 of the said Act vide the impugned order dated 23.8.2004. Initial part of the impugned order stipulates that the petitioner had failed to maintain the notary registry in accordance with rules and has certified certain documents which are required to be registered under Section 17 of the Indian Stamp Act 1899, therefore, his renewal of notary certificate has been refused.
2. The facts of the case are not disputed viz. the petitioner was eligible to be appointed public notary under the Notaries Act and was appointed as such vide notification dated 25.4.2000 for a period of five years. Accordingly name of the petitioner was enrolled in the register maintained with the government under Section 4 of Notaries Act. The petitioner was issued a certificate to practice notary at Tehsil Leharpur, District Sitapur.
The other facts pleaded in the petition are not relevant, in peculiar facts and circumstances of the case. What is required to be noticed is that a notice was issued to the petitioner vide Annexure-4 dated 20.8.2003 indicating certain lapses in the working of the petitioner as notary public. The petitioner responded to the notice vide reply Annexure-5 dated 10.9.2003. The allegations made against the petitioner were apparently denied and explanation has been furnished. It is the admitted position that thereafter impugned order has been passed vide Annexure-1.
3. The contention of learned counsel, as specifically pleaded in para 25 of the petition, is that the respondents did not follow the procedure prescribed under Rule 13 of the Notaries Rules 1956 (for short 'notaries rules') which has caused prejudice to the petitioner. It has been pleaded that mandatory provisions of the Act and Rules have not been followed and, therefore, the impugned order (Annexure-1) is rendered illegal and liable to be quashed.
4. Contention of learned counsel for the respondents State Shri Mayankar Singh is that notice was issued to the petitioner vide Annexure-4. The impugned order has been passed by appropriate authority after considering the reply given by the petitioner. In such circumstances opportunity of hearing having been given to the petitioner, illegality cannot be traced in the action of the respondents. Action of the respondents does not call for judicial review of the impugned order.
5. We have considered the facts and circumstances of the case in context of the legal provisions. The relevant provisions that need to be noticed are Section 10 from the Notaries Act and Rule 13 from the Notaries Rules.
Section 10 of the Notaries Act reads as under:-
"10. Removal of names from register-
The government appointing any notary may, by order, remove from the register maintained by it under section 4, the name of the notary if he-
(a) makes a request to that effect; or
(b) has not paid any prescribed fee required to be paid by him; or
(c) is undischarged insolvent; or
(d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the government, renders him unfit to practice as a notary; [or]
(e) is convicted by any court for an offence involving moral turpitude; or
(f) does not get his certificate of practice renewed.] (emphasised by us) Rule 13 of the notaries Rules reads as under:-
13. Inquiry into the allegations of professional or other misconduct of a notary.--
(1) An inquiry into the misconduct of a notary may be initiated either suo motu by the appropriate Government or on a complaint received in Form XIII.
(2) Every such complaint shall contain the following particulars, namely:--
(a) the acts and omissions which, if proved, would render the person complained against unfit to be a notary;
(b) the oral or documentary evidence relied upon in support of the allegations made in the complaint.
(3) The appropriate Government shall return a complaint which is not in the proper Form or which does not contain the aforesaid particulars to the complainant for representation after compliance with such objections and within such time as the appropriate Government may specify: Provided that if the subject-matter in a complaint is, in the opinion of the said Government, substantially the same as, or covered by, any previous complaint and if there is no additional ground, the said Government shall file the said complaint without any further action and inform the complainant accordingly.
(4) Within sixty days ordinarily of the receipt of complaint, the appropriate Government shall send a copy thereof to the notary at his address as entered in the Register of Notaries.
(4-a) Where an inquiry is initiated, suo motu by the appropriate Government, the appropriate Government shall send to the notary a statement specifying the charge or charges against him, together with particulars of the oral or documentary evidence relied upon in support of such charge or charges.
(5) A notary against whom an inquiry has been initiated may, within fourteen days of the service on him of a copy of the complaint under sub-rule (4) or of the statement of the charges under sub-rule (4-a), as the case may be, or within such time as may be extended by the appropriate Government, forward to that Government a written statement in his defence verified in the same manner as a pleading in a civil court.
(6) If on a perusal of the written statement, if any, of the notary concerned and other relevant documents and papers, the appropriate Government consider that there is a prima facie case against such notary, the appropriate Government shall cause an inquiry to be made in the matter by the competent authority. If the appropriate Government is of the opinion that there is no prima facie case against the notary concerned, the complaint or charge shall be filed and the complainant and the notary concerned shall be informed accordingly.
[(7) Every notice issued to a notary under this rule shall be sent to him by registered post. If any such notice is returned unserved with an endorsement indicating that the addressee has refused to accept the notice or the notice is not returned unserved within a period of thirty days from the date of its despatch, the notice shall be deemed to have been duly served upon the notary.] (8) If shall be duty of the appropriate Government to place before the competent authority all facts brought to its knowledge which are relevant for the purpose of an inquiry by the competent authority.
(9) A notary who is proceeded against shall have right to defend himself before the competent authority either in a person or through a legal practitioner or any other notary.
(10) Except as otherwise provided in these rules, the competent authority shall have the power to regulate his procedure relating to the inquiry in such manner as he considers necessary and during the course of inquiry, may examine witnesses and receive any other oral or documentary evidence.
(11) The competent authority shall submit his report to the Government entrusting him with the inquiry.
(12) (a) The appropriate Government shall consider the report of the competent authority and if in its opinion a further inquiry is necessary, may cause such further inquiry to be made and a further report submitted by the competent authority.
(b) If after considering the report of the competent authority the appropriate Government is of the opinion that action should be taken against the notary, the appropriate Government may make an order :--
(i) cancelling the certificate of practice and perpetually debarring the notary from practice; or
(ii) suspending him from practice for a specified period; or
(iii) letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved.
(emphasised by us)
6. From the perusal of the documents placed with the writ petition and the counter affidavit it becomes evident that show cause was issued to the petitioner indicating certain lapses in the working of the petitioner as notary public. The petitioner furnished a reply thereto, as noticed above. On considering the reply, straightaway, impugned order has been passed under Section 10 of the Notaries Act removing the name of the petitioner from the register maintained under Section 4 of the Notaries Act.
7. Provisions contained in Section 10(d), which have been emphasised by us, clearly indicate that the government may by order remove any notary from the register if he is found, upon enquiry in the prescribed manner, to be guilty of such professional or other misconduct as in the opinion of the government renders him unfit to practice as a notary.
On considering the facts of this case it becomes evident that enquiry, as prescribed, has not been conducted.
Enquiry has been prescribed under the notaries rules, in particular Rule 13, which has also been extracted above. Rule 13 is a complete Code prescribing the manner and mode of enqiry into the allegation of professional and other misconduct of a notary. Perusal of the provisions contained in Rule 13 of the notaries rules, particularly the emphasised portion, make it evident that an enquiry into the misconduct of a notary may be initiated either suo moto by the government, or on a complaint. In the case in hand it appears that proceedings were initiated suo moto. In such circumstances, Clause (4-a), 5,6,9 to 12 of Rule 13 of Notaries Rules would come into play.
Clause (4-a) of Rule 13 provides where an enquiry is initiated suo moto by appropriate government, the government shall send to the notary a statement specifying the charge or charges against him together with particulars of the oral or documentary evidence relied upon in support of such charge or charges. (The respondents apparently gave notice to the petitioner vide Annexure-4 dated 20.8.2003 in terms of Clause (4a) of Rule 13).
Under clause (5) of Rule 13 of the Notaries Rules, the notary against whom an enquiry has been initiated, may within fourteen days of the service on him of the statement of charges, forward written statement in his defence to the government. (The petitioner furnished reply to the charges apparently under Clause 5 of Rule 13 vide Annexure-5 dated 10.9.2003).
Under clause 6, in case the government considers on perusal of the written statement and other documents that there is prima facie a case against such notary public, the Government shall cause an enquiry to made in the matter by competent authority. However, in case the government is of the opinion that no prima facie case is made out, the charges may be filed and the notary notified accordingly.
Clause 9 to 12 of Rule 13 further provide that a notary who is proceeded against shall have a right to defend himself either in person or through a legal practitioner.
The rule further provides that the appropriate government shall consider the report of the competent authority that held enquiry, and if in its opinion a further enquiry is required, such further enquiry may be made. After considering report of the competent authority, in case the government formulates an opinion that action should be taken against the notary, the government has the discretion of making an order cancelling the certificate of practice; suspending the notary public from practice for a specified period; or letting him off with a warning according to the nature and gravity of the misconduct of the notary proved.
8. From the facts and circumstances of the case it stands demonstrated that there has been a clear violation of clause 6 of Rule 13 of the Notaries Rules. After the petitioner had furnished his written statement purportedly under Rule 13(5) of the Notaries Rules to the statement of charges, the respondents/government could have caused an enquiry to be conducted by the competent authority, if a prima facie case is made out against the notary. On considering the written statement license of the petitioner could not have been cancelled. Enquiry having not been conducted in pursuance and in deference to provisions of clause 6 of rule 13 of the Notaries Rules, in the considered opinion of the Court, prejudice has been caused to the rights of the petitioner. In the course of enquiry, if one was conducted, the petitioner could have pleaded his case himself or through a lawyer. The petitioner could have brought evidences in his support in the enquiry procedure and proceedings. It was incumbent on the respondents, thereafter to consider the enquiry report and proceed further as provided under Rule 13(12) of Notaries Rule.
Consideration of the written statement of the Notary/Petitioner cannot be considered as a substitute to enquiry, as provided under Section 10(d) of the Notaries Act read with Rule 13(6) of the Notaries Rules, for imposing penalty under Rule 13(12) of Notaries Rules.
9. In view of the above we have not hesitation in holding that the impugned order has been passed without following mandatory provisions of Section 10 of the Notaries Act read with Rule 13 of the Notaries Rules.
10. The petition is allowed.
The impugned order is quashed.
We, however, hereby provide that the respondents would be at liberty to proceed against the petitioner on the basis of statement of charges, Annexure-4. The written statement filed by the petitioner placed on record as Annexure-5 may be considered by the government, in terms of Clause 6 of Rule 13 of the Notaries Rules. Procedure provided under clause 6 of Rule 13 of The Notaries Rule be followed from that stage.
[JUSTICE ANANT KUMAR] [JUSTICE AJAI LAMBA] Order Date :- 24.4.2018 Madhu