S.L. Gupta vs State of Chhattisgarh

Satish K. Agnihotri, J.

By this petition, the Petitioner seeks a writ in the nature of certiorari to quash the order dated 6-8-2009 (Annexure P-1), whereby the name of the Petitioner has been struck off from the Register of Notaries, declaring it to be illegal and inoperative in law and further, to issue a writ in the nature of mandamus restraining the Respondent/State from giving effect to the order dated 6-8-2009 and further to allow the Petitioner to continue as Notary.

The facts, in nutshell, are that the Petitioner was enrolled as an Advocate by the State Bar Council of the erstwhile State of Madhya Pradesh in the year 1964. The Petitioner has been practising as an Advocate at Surajpur, District Surguja, Chhattisgarh. The Petitioner was later on appointed as Notary by order dated 20-4-1983 (Annexure P-2). Thereafter, his appointment was renewed for three years and thereafter, for five years. The latest renewal of the Petitioner''s license as Notary was done vide order dated 6-7-2006 which is valid up to 17-4-2011 (Annexure P-3). The Petitioner received a memo dated 28-4-2004 (Annexure P-4) from the Court of 1st Additional District & Sessions Judge and the Enquiry Officer, Surajpur, District Surguja, in reference to certain complaints pending against the Petitioner. Vide letter dated 30-4-2008 (Annexure P-6), the Petitioner requested to grant some time to enable him to file reply. The Petitioner also filed his reply to the above notice on 8-5-2008 (Annexure P-7). The Petitioner again received a memo dated 15-7-2008 (Annexure P-8) wherein he was directed to produce the Notary Register and other documents stating that in his reply dated 8-5-2008, he has not submitted the aforesaid documents. In response on 18-7-2008 (Annexure P-9), the Petitioner submitted that the old records are not traceable on account of change of his residence and as and when the documents are received, he would submit the same and again sought for some time. The Petitioner also received a notice on 5-1-2009 (Annexure P-10) from the Additional Secretary, Law & Legislative Affairs Department, Government of Chhattisgarh wherein the Petitioner was required to submit his comments on the complaint made by one Shri S.N. Dubey, who happens to be a resident of Ramanuj Nagar. Later on, vide order dated 6-8-2009, the name of the Petitioner from the Register of Notaries was struck off on being found guilty of the misconduct. Thus, this petition.

Shri Sanjay K. Agrawal with Shri A.K. Prasad, learned Counsel appearing for the Petitioner would submit that the allegations against the Petitioner are vague and baseless. Even the complaints made against the Petitioner was not in proper proforma. Shri Agrawal would further submit that the complaint is mandatorily required to be submitted in Form No. XIII under the provisions of Notary Rules, 1956. The said provision has completely been ignored. Shri Agrawal would further submit that some enquiry was being conducted by the Additional District Judge, wherein Shri S.N. Dubey has stated that he has never made any complaint against the Petitioner.

On the other hand, Shri A.S. Kachhwaha, learned Counsel appearing for the State/Respondents would submit that a proper opportunity of hearing was afforded to the Petitioner. The Petitioner was granted sufficient lime to file reply. Despite the fact that even time was extended for submission of certain documents, the Petitioner could not file the required documents up to 30-7-2008. Accordingly, on the basis of affidavit and the documents, it was found that the Petitioner has committed misconduct in performance of his work as Notary.

Heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto.

The Notaries Rules, 1956 (for short ''the Rules, 1956'') has been made by the Central Government in exercise of powers conferred by Section 15 of the Notaries Act, 1952. A proper procedure has been prescribed for inquiry into the allegations of professional misconduct or other misconduct under the provisions of Rule 13 of the Rules, 1956, which reads as under:

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 times 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 dispatch, the notice shall be deemed to have been duly served upon the Notary.

(8) It shall be the duty of the Appropriate Government to placed 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 cither in 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.

(13) Notification of removal- The removal of the name of any Notary from the Register of Notaries form practice, as the case may be, shall be notified in Official Gazette and shall also be communicated in writing to the Notary concerned.

It is prescribed that an enquiry into the misconduct of a Notary may be initiated either suo motu by the Appropriate Government or on a complaint received in Form XIII. If the complaint is not made in proper form, the same shall be returned back to the complainant. It appears that the complaint was not lodged in the proper form, i.e., Form XIII. Even in the enquiry report, it has been found that the complaint made by Shri S.N. Dubey, has stated that he had not made any complaint against the Petitioner Shri S.L. Gupta [See: Para 12 of the enquiry report dated 1-10-2008 (Annexure R-1)]. Even if the enquiry was initiated suo motu dehors the complaint lodged by the complaint, the Appropriate Government was required to send a statement specifying the charge or charges together with particulars of oral or documentary evidences relied upon to the concerned Notary under Sub-rule (4-A) of the Rules, 1956. It appears that the initiation of the complaint was not in accordance with the statutory procedure as prescribed under Rule 13 of the Rules, 1956. Neither the complaint was in prescribed proper form nor statement of specified charge(s) was sent to the Petitioner.

The contention of the Petitioner with regard to the fact that even if the charges are found proved, the same did not constitute "misconduct" as defined in several decisions of the Supreme Court, need not be considered at this stage. It is not necessary to detail on merits as the order dated 6-8-2009 (Annexure P-1) has been passed without following the statutory procedure as prescribed under the provisions of Rule 13 of the Rules, 1956. Thus, the report and consequential order striking off the name of the Petitioner from the Register of Notaries is vitiated.

In view of the above and for the reasons stated hereinabove, the order dated 6-8-2009 (Annexure P-1) is quashed. However, liberty is reserved to the Respondents to take action, if so advised, in accordance with the statutory provisions as prescribed under the Rules, 1956.

The writ petition is allowed to the above extent. No order as to costs.