Rakesh Kumar vs State of Himachal Pradesh and another

By way of this writ petition, petitioner has prayed for the following reliefs: "i) That the order dated 24.11.2011 suspending the Certificate/Licence of the petitioner till the final our of FIRs may kindly be quashed and set aside in the interest of justice and fair play.

ii) That the entire record of the case may kindly be summoned. Or such other orders which this Hon''ble Court deems fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner and against the respondents."

Brief facts necessary for adjudication of the present case are that petitioner was enrolled as an Advocate with the Bar Council of Himachal Pradesh on 11th January, 1992. Thereafter, he was practicing as such in Sub Divisional Court at Amb as well as at District Courts, Una. He applied for issuance of certificate for Notary in the year 2011. He was called for interview and pursuant to his being successful in the same, he was awarded a certificate of appointment as Notary vide Annexure P-5, dated 22nd July, 2011. Vide notification dated 24.11.2011, Annexure P-7, the certificate of Notary which was so issued to him was ordered to be suspended on the ground that one Shri R. K. Dhanotia has made a complaint against the petitioner on the ground that he has concealed the factum of two FIRs having been registered against him while applying for being appointed as such.

Feeling aggrieved, petitioner filed the present petition praying for the reliefs already enumerated above.

Impugned notification inter alia stands assailed on the ground that the same was issued without affording an opportunity of being heard to the petitioner and further, neither there was any such requirement in the Memorial so prescribed under The Notaries Rules, 1956, vide which applicant applied for being appointed as Notary, to the effect that applicant has to make mention of pendency of any FIR nor he was given any opportunity of explaining as to what were the FIRs against him.

In its reply filed to the petition, it was mentioned by the State that a complaint was received against the appointment of the petitioner as Notary from one Shri R.K. Dhanotia, Advocate, wherein it was mentioned that two FIRs i.e. FIR No. 136 of 2009, under Sections 353, 332, 147, 148, 149, 323 & 504 IPC and FIR No. 14 of 2011, dated 22.01.2011, under Sections 147, 148, 149, 323, 295-A, 307, 120-B and 500 of IPC, were pending investigation at Police Amb against the petitioner and thus objection was raised against the appointment of the petitioner as Notary. It further stands mentioned in the reply that inquiry was made into the same through Superintendent of Police, Una, which revealed that FIR No. 136/2009 stood registered against the petitioner under Sections 353, 332, 147,148, 149, 323 & 504 IPC whereas FIR No. 14 of 2011, dated 22.01.2011, under Sections 147, 148, 149, 323, 295-A, 307, 120-B and 500 of IPC, wherein address of the petitioner was given as resident of village Dhandhari, Police Station Amb, District Una and village Adarshnagar Amb, Mubarikpur Road, Una respectively, whereas in the application, which was filed by the petitioner while applying for Notary, he had mentioned his address as resident of village Adarshnagar Amb, Mubarikpur Road, District Una. It was further mentioned in the reply that the petitioner had suppressed these material facts at the stage when preliminary inquiry was conducted under section 6 of the Notary Rules and because of misrepresentation made by the petitioner, the certificate so issued in favour of the petitioner was suspended.

On 12.07.2017, this Court had passed the following order. " Heard for some time. Annexure P-2 which is a Form prescribed under Rule 4(2) of the Notaries Rules, 1956, does not contain any column in which an applicant is to delclare whether or not there is any FIR registered against him or her. Rule 3 of the Notaries Rule, 1956, which deals with qualification for being appointed as Notary alco does not contain any clause that registration of FIR against an applicant will amount to disqualification. In this background, prima facie impugned order seems to be bad in law. Learned Deputy Advocate General is accordingly directed to file an affidavit on behalf of respondant No. 2 starting therein as to where is it contemplated that registration of FIR is a disqualification for being appointed as a Notary. Needful be done positively within two weeks.

List on 17.08.2017.

Copy Dasti. "

In compliance thereof, personal affidavit dated 04.08.2017 that of ADM-cum-Collector, Una stands filed in the Court. A perusal of the same demonstrates that the said deponent had reiterated the justification of the respondents in their reply so filed to the writ petition in support of their act of suspending the licence of the petitioner and there was no specific answer to the query raised by the Court vide order dated 12.07.2017 as to where it was contemplated that registration of FIR was a condition for disqualification of licence of Notary.

I have heard learned Counsel for the petitioner as well as learned Deputy Advocate General and also gone through the records of the case.

It is not in dispute that the sole reason which led to issuance of the impugned notification was that a Lawyer had filed an complaint against the petitioner alleging therein that as two FIRs stood registered against the petitioner, therefore, his appointment as Notary be cancelled. It is also not in dispute that on account of registration of the said two FIRs, details of which have been mentioned in the above part of the judgment, licence of Notary so issued in favour of the petitioner was suspended. The moot issue which this Court has to decide is as to whether registration of FIRs was a bar for a candidate to apply for and for being appointed as Notary and whether concealment of this fact justifies the act of the respondents of suspending the licence of Notary of the petitioner.

The format in which an eligible applicant for being appointed as Notary has to apply is provided in Rule 4 (2) of the Notaries Act, 1952 framed under the provisions of Notaries Act. This format is known as "Memorial" which is reproduced as under: "FORM OMITTED"

A perusal of the said Memorial demonstrates that there are 10 columns in the same. There is no column in the said memorial in which it is contemplated that if there is an FIR/or a case pending against a person who is applying for being appointed as Notary, then such information has to be disclosed in the Memorial. During the course of arguments, learned Deputy Advocate General could not bring to the notice of this Court any provision either in the Statute or in the Rules wherein it is envisaged that registration of FIRs and pendency of investigation thereof is a disqualification for being appointed as a Notary. No doubt Rule 13(XII)(4) of the Rules, 1956 confers power upon the authority concerned to either cancel or suspend the licence of Notary conferred upon a person, however, this provision comes into picture where an inquiry is envisaged into misconduct of Notary on the allegation of professional or other misconduct. There is no allegation of professional misconduct against the petitioner. Similarly, there is also no allegation of other mis-conduct against the petitioner. The sole allegation against him is that he had concealed the factum of two FIRs having been registered against him. In the absence of there being any provision in the Memorial that an incumbent has to disclose therein the factum of pendency of any FIR against him and further in the absence of any condition that registration of FIRs and pendency of investigation thereof would be disqualification for being appointed as a Notary, in my considered view, the act of the respondents of suspending the licence of the petitioner vide impugned notification dated 24.11.2011 is per se arbitrary, illegal and thus not sustainable in the eyes of law. Respondents could not have had suspended the licence of Notary conferred upon the petitioner on grounds which are extraneous to the Statutory provisions or Rules framed thereunder. The authority conferred upon the respondent to cancel or suspend the licence of Notary has to be exercised strictly on the grounds which are available to them as per the Statutory provisions and Rules made thereunder. Respondents could not have had suspended the licence of Notary so conferred upon the petitioner on account of grounds which were not so provided for either in the Statute or the Rules framed thereunder.

In view of above discussion, this petition is allowed. Impugned notification dated 24.11.2011, Annexure P-7, is quashed and set aside. Pending miscellaneous application(s), if any, also stand disposed of accordingly. No order as to costs.