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2000 DIGILAW 700 (AP)

K. Vishnu v. Government Of A. P.

2000-09-11

ELLEN DHARKAR

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ELLEN DHARKAR, J. ( 1 ) THIS writ petition was filed for issuing Writ of Certiorari calling for the records relating to the impugned order passed by the Government in G. O. Ms. No. 266, Revenue (Regn. III) Department, dt. 10-3-1992 and quash the same as illegal, arbitrary and contrary to law. ( 2 ) THE petitioner was registered as Notary by order of the respondent dt. 22-9-1971. The respondent issued the Memo No. 143406/regn. 11/88-1 Revenue (Regn. II) Department, dt. 17-5-1989 stating that the Inspector General of Registration and Stamps brought to the notice of the Government that when the District Registrar, West Godavari, inspected the Notarial Records maintained by the petitioner on 20-8-1987, the following irregularities were noticed :1. "loss of stamp duty of Rs. 8,863. 00 due to attestation of deficitly stamped documents. 2. EXCESS Fee collected from the parties for attestation of documents. 3. FAILURE to note the value of the property in the Notarial Register. 4. FAILURE to impound the Translated Copy. FAILURE to note the stamp duty borne by the documents in some cases" ( 3 ) THEREFORE, he was directed to state why action should not be taken under the provisions of the Notaries Act, 1952 and the Notaries Rules, 1956 for the said irregularities committed by the petitioner and asked him to submit his explanation along with supporting documents. Accordingly, the petitioner on 19-6-1989 submitted a detailed explanation denying the allegations made in the above said memo. Thereafter, the Government in Memo. 143406/regn. II (1)/88-5 dt. 6-11-1990 passed an order stating that according to the Inspector General of Registration and Stamps, the petitioner is responsible for the following loss of revenue to the Government :1. Document No. 323/86rs. 13. 002. Document No. 88/87rs. 300. 003. Document No. 219/87rs. 610. 004. Document No. 41/87 Rs. 2590. 00totalrs. 3513. 00 ( 4 ) IT is further stated that after careful consideration of the explanation submitted by the petitioner, the Government came to the conclusion that the petitioner is responsible for loss of Rs. 923. 00 in respect of first three documents and he was directed to remit the same, failing which action will be taken under the said Act and Rules. The petitioner in order to purchase piece from the respondent remitted the sum of Rs. 923. 923. 00 in respect of first three documents and he was directed to remit the same, failing which action will be taken under the said Act and Rules. The petitioner in order to purchase piece from the respondent remitted the sum of Rs. 923. 00 in the office of the District Registrar, West Godavari on 12-12-1990 and informed the same to the Government through letter dt. 14-12-1990. Thereafter, the Government has issued another Memo. dt. 30-5-1991 to the petitioner stating that since he has remitted Rs. 923. 00 and the short collection of stamp of the petitioner, which is serious in nature leading to the loss of revenue and to show cause why the Certificate of Practice should not be cancelled and his name should not be removed from the Register of Notaries. The petitioner submitted his explanation on 4-7-1991 denying the allegation made in the above said memo, and stated as per the directions of the Government he has remitted the said amount with a view that they will close the matter. But, after consideration of the explanation of the petitioner, the Government has passed G. O. Ms. No. 266, Revenue (Regn. II) Department, dt. 10-3-1992, which was received by the petitioner on 14-3-1992, cancelling the Certificate of Practice and perpetually debarring him from practice under Rule 13 (12) (b) (i) of the Notaries Rules, 1956. Aggrieved by that order, the petitioner filed the present writ petition. ( 5 ) IT is submitted by the learned counsel for the petitioner that the impugned order was passed by the respondent without following the procedure contemplated under Rule 13 of the Notaries Rules, 1956. Therefore, the impugned order is liable to be set aside. It is further submitted that the Government in its order dt. 6-11-1990 directed the petitioner to remit an amount of Rs. 923. 00 towards loss of revenue with regard to document Nos. 1 to 3 and with regard to document No. 4 is concerned benefit of doubt was given to the petitioner. It is further submitted that if the amount of Rs. 923. 00 is not paid within 30 (thirty) days from the date of receipt of the memo, necessary action will be taken under the provisions of said Rules and Act. 1 to 3 and with regard to document No. 4 is concerned benefit of doubt was given to the petitioner. It is further submitted that if the amount of Rs. 923. 00 is not paid within 30 (thirty) days from the date of receipt of the memo, necessary action will be taken under the provisions of said Rules and Act. Therefore, once he was asked to remit the amount within thirty days from the date of receipt of the order, the question of taking further action by the respondent does not arise. Therefore, the impugned order is liable to be set aside. ( 6 ) THE Government has filed the counter-affidavit admitting that the name of the petitioner was registered in the Notaries on 22-9-1971 and the same was renewed up to 22-9-1992. The records maintained by the petitioner were inspected by the District Registrar, West Godavari on 26-3-1987 for the year 1987-88 and found certain procedural irregularities and caused loss of stamp duty to the tune of Rs. 8,862. 00 Therefore, a notice was given on 17-5-1989 calling for the explanation from the petitioner. Considering the explanation submitted by the petitioner, the loss estimated by the Government to the tune of Rs. 3,513. 00 in four documents. Therefore, the Government came to the conclusion that he committed the omissions in the matter of collecting stamp duty on the documents notarised by him, which is of serious implication leading to loss of revenue to the Government. Accordingly, on 6-11-1990 directed the petitioner to pay the amount of Rs. 923. 00 being the loss of revenue finally found, failing which further action will be taken under the said Rules. Accordingly, the petitioner has remitted the amount on 12-12-1990. Thereafter, another memo, dt. 30-5-1991 was issued by the Government calling for the explanation of the petitioner and after considering his explanation the impugned order was passed which is according to Rule 13 (12) (b) (i) of the Notaries Rules 1956. The Government has strongly contended that the impugned action taken by the Government is in accordance with the said Rules. ( 7 ) TO appraise the rival contentions of both the learned counsel for the petitioner and the learned Government Pleader for Revenue, let us go to the legal position bearing on the subject. The Government has strongly contended that the impugned action taken by the Government is in accordance with the said Rules. ( 7 ) TO appraise the rival contentions of both the learned counsel for the petitioner and the learned Government Pleader for Revenue, let us go to the legal position bearing on the subject. ( 8 ) SECTION 3 of the said Act empowers either the Central Government or the State Government to appoint as notaries any legal practitioners or persons who possess such qualifications as may be prescribed. Section 4 contemplates both the Central and State Governments shall maintain, in such form as may be prescribed, a Register of the notaries appointed by that Government and entitled to practise as such under this Act. The Register shall include the following particulars : (a) his full name, date of birth, residential and professional address; (b) the date on which his name is entered in the Register; (c) his qualifications; and (d) any other particulars which may be prescribed. Section 6 casts a duty on the Central and State Governments to publish the lists of notaries in the month of January of each year in the Official Gazette. As per S. 7, the notaries are entitled to use a seal including his seal containing his designation as prescribed by the Act. Section 8 prescribes the functions of notaries. Section 9 bars his practice without the Certificate of Practice. Section 10 gives power to the Government to remove the name of the notary from the Register maintained by it under S. 4, 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 an 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 practise as a notary. ( 9 ) SO, in the facts and circumstances of the case, S. 10 of the said Act empowers the Government to remove the name of the petitioner from the Register of Notaries if the petitioner has been found upon inquiry in the prescribed manner to be guilty of such professional or other misconduct, in the opinion of the Government, renders him unfit to practise as a notary. By exercising the said power, the Government has passed the impugned order removing the name of the petitioner from the Register of Notaries maintained by the State Government. ( 10 ) RULE 13 of the said Rules made as per S. 15 of the Act contemplates the procedure to be followed before removing the name of the notary in the Register of Notaries maintained by the Government. Rule 13 contemplates professional or other misconduct of a notary. Under sub-rule (i) the appropriate Government may initiate enquiry into the misconduct of a notary either suo motu or on a complaint received in Form-XIII. ( 11 ) WE are concerned in this writ petition, the suo motu initiation of the action by the Government. When an enquiry 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 and documentary evidence relied upon in support of such charge or charges. Sub-rule (6) contemplates on perusal of the written statement, if any, of the notary concerned and other relevant documents and papers, the appropriate Government considers that there is 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 shall be filed and the complainant and the notary concerned shall be informed accordingly. Sub-rule (7) postulates that every notice issued to a notary under this rule shall be sent to him by registered post with acknowledgment due. If any such notice is refused to accept the notice shall be deemed to have been served. If the notice is returned with an endorsement indicating that the addressee cannot be found at the address given, the appropriate Government shall, if the inquiry was initiated on complaint, ask the complainant to supply to it the correct address of the notary. A fresh notice shall be served upon the notary at the address so supplied. Sub-rule (8) says that it 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. A fresh notice shall be served upon the notary at the address so supplied. Sub-rule (8) says that it 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. Sub-rule (9) provides that a notary shall have a right to defend himself before the competent authority either in person or through a legal practitioner or any other notary. Sub-rule (10) says that 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. Sub-rule 12 (a) provides that 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. 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 debar 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 to the misconduct of the notary proved. Sub-rule (13) provides Notification of removal. The removal of the name of any notary from the Register of Notaries or his suspension from practice, as the case may be, shall be notified in the Official Gazette and shall also be communicated in writing to the notary concerned. ( 12 ) A reading of Rule 13 contemplates that a full-fledged enquiry has to be conducted before initiating any action by the appropriate Government on suo motu or on the basis of the complaint. Therefore, at this juncture the learned counsel for the petitioner submits that the impugned action was initiated by the Government based on the inspection conducted by the District Registrar, West Godavari, and on the report made by the Inspector General of Registration and Stamps, the respondent has issued the notice stipulating four violations made by the petitioner. After considering the explanation submitted by the petitioner, he was directed to remit the amount of Rs. 923. After considering the explanation submitted by the petitioner, he was directed to remit the amount of Rs. 923. 00 towards loss of revenue to the Government. Thereafter, another notice was issued on 30-5-1991 to show cause why the Certificate of Practice should not be cancelled and after receiving the explanation from the petitioner, the impugned order was passed. Therefore, the entire action initiated by the respondent is not in accordance with the procedure contemplated under Rule 13 of the said Rules. Therefore, the impugned order has to be struck down for violating the procedure under Rule 13. ( 13 ) AS seen from the material placed before me, while passing the order on 6-11-1990 initially Rs. 8,863. 00 was shown as loss of stamp duty due to attestation of deficitly stamped documents. When the petitioner has submitted his explanation to the above said notice, the Government came to the conclusion that the loss of revenue in respect of three documents is shown as Rs. 923 and ultimately they came to the conclusion that the petitioner was directed to remit the same. So, the respondents instead of knowing the actual position, they themselves evolved a procedure and issued notices to the petitioner after receiving explanation, passed the final order, which is contrary to the procedure contemplated under Rule 13 of the said Rules. Further, the petitioner has been functioning since 22-9-1971 with unblemished career and there are no complaints or allegations against him and for the first time in the year 1989 the respondents found that he committed some irregularities. Therefore, viewing from all angles that the respondents are not followed the procedure as contemplated under Rule 13 while initiating the impugned action to cancel his Registration of Notary basing on the irregularities pointed out by the District Registrar. ( 14 ) THE power is conferred on the appropriate Government under S. 10 of the Act to remove the name of a Notary from the Register maintained by the Government on the ground that he has been 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. Therefore, S. 10 of the Act postulates if the Government want to remove the name from the Register maintained by it, such an action has to be taken after conducting an enquiry in the prescribed manner, which is contemplated under Rule 13 of the Rules. Rule 13 contemplates the procedure how an enquiry has to be conducted. In my considered view a full-fledged enquiry is required. As seen from the impugned order, the Government before passing impugned order has not conducted any enquiry contemplated under S. 10 of the Act read with Rule 13 of the Rules. The impugned order passed by the Government is based on the Inspection Report submitted by the District Registrar of Registration and Stamps. After receiving the report from the Enquiry Officer, the Government if satisfied should have ordered full-fledged enquiry and appropriate action should have been taken. If any action is initiated by the Government based on the Inspection Report, it is contrary to S. 10 of the Act. Removal of the name has to be made based on the enquiry report only and not on the inspection report submitted by the District Registrar, Registration and Stamps. ( 15 ) THEREFORE, I am satisfied that ends of justice will be met by quashing the order passed by the Government in G. O. Ms. No. 266 Revenue (Regn. II) Department, dt. 10-3-1992 cancelling the Certificate of Registration of Notary of the petitioner. Accordingly, the impugned order is quashed. After dictating the judgment the learned Government Pleader requests that the order of this Court does not prevent the Government to initiate action under Rule 13 of the said Rules. If the Government wants to proceed against the petitioner for the irregularities pointed out by the District Registrar, West Godavari, it is entitled to do so strictly following the procedure contemplated under Rule 13 of the Notaries Rules, 1956. ( 16 ) ACCORDINGLY, the writ petition is allowed. No order as to costs. That Rule Nisi has been made absolute as above. Petition allowed.