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2009 DIGILAW 3054 (ALL)

MOHD. SHARIF ADVOCATE v. DISTRICT JUDGE, MAHOBA

2009-09-07

KRISHNA MURARI, S.RAFAT ALAM

body2009
JUDGMENT By the Court.—By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the validity of the order dated 30.3.2000 passed by the State Government cancelling his appointment as Notary and removing his name from the Notary Register in exercise of the power conferred under Section 10 of the Notaries Act, 1952 (in short the Act). 2. We have heard Sri W.H.Khan, learned senior counsel appearing for the petitioner and Sri Neeraj Upadhyaya, learned Additional Chief Standing Counsel appearing for respondents No. 1 and 2. 3. Respondent No. 3, despite notice, did not choose to enter appearance. 4. The short fact giving rise to the present controversy are as under : The petitioner was appointed as Public Notary vide order dated 23.3.1995. Respondent No. 3 made a complaint dated 14.1.1997 alleging various irregularities committed by the petitioner before this Court. The Vigilance Department of this Court forwarded the complaint to the District Judge, Mahoba for necessary enquiry and to submit report. Subsequently, reminder dated 22.7.1998 was also sent. The District Judge, Mahoba enquired into the matter and submitted report dated 26.4.1999 holding the petitioner guilty of misconduct and forwarded the same to the State Government whereupon the State Government after having considered the report, passed the impugned order removing him as Public Notary. 5. Learned counsel for the petitioner vehemently contended that the impugned order has been passed without following the provisions prescribed by the Act and Rules framed thereunder for the removal of Public Notary. It is submitted that under Rule 13(1) of the Rules the enquiry into the misconduct of a Notary can be initiated either suo motu or on a complaint received in Form-XIII. Sub-rule (3) further provides that the particulars to be mentioned in the complaint and unless the complaint is made in a proper Form containing all the particulars, the same is to be returned to the complainant for the removal of the objection within the time specified by the appropriate Government. Since in the present case, the complaint was not made in the prescribed Form-XIII and did not contain particulars required to be mentioned, as such the entire proceedings are vitiated and the order of removal is rendered illegal. Since in the present case, the complaint was not made in the prescribed Form-XIII and did not contain particulars required to be mentioned, as such the entire proceedings are vitiated and the order of removal is rendered illegal. It has further been pointed out that if the appropriate Government finds that there is a prima facie case against the Notary, it shall order an enquiry to be made in the matter by the appropriate authority and in the present case, the enquiry was made by the District Judge without there being any satisfaction and direction by the appropriate Government, i.e., the State Government. 6. On the other hand, learned Additional Chief Standing Counsel submitted that Form-XIII provides that the complainant is required to give his address, address of the Notary, respondent’s address, particulars of complaint in paragraphs consecutively numbered and particulars of evidence oral and documentary, if any, to substantiate the complaint and the entire particulars required by Form XIII were mentioned in the complaint as such even if it was not in the prescribed Form XIII, the same will not vitiate the proceeding. It has further been contended that since in the enquiry conducted by the District Judge, the charges levelled against the petitioner were found to have been established, he has rightly been removed, hence the order does not call for any interference. 7. We have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Chief Standing Counsel for the State-respondents and perused the record. 8. To appreciate the contention raised before us, it would be appropriate to examine the relevant provisions of the Act and Rules including Form XIII. 9. Section 10 of the Act provides removal of names from Register maintained by it under Section 4. 8. To appreciate the contention raised before us, it would be appropriate to examine the relevant provisions of the Act and Rules including Form XIII. 9. Section 10 of the Act provides removal of names from Register maintained by it under Section 4. Section 10 of the Act reads as under : “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 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; (or) (e) is convicted by any Court for an offence involving moral turpitude; or (f) does not get his certificate of practice renewed.” 10. Rule-13 of the Notaries Rules, 1956 (in short the Rules) made in exercise of the powers conferred by Section 15 of the Act 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 complaint for representation after compliance which 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. (4A) 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 (4A) 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) It shall be the 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 person or through a legal practitioner or any other notary. (9) A notary who is proceeded against shall have right to defend himself before the competent authority either 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 from practice, as the case may be, shall be notified in official Gazettee and shall also be communicated in writing to the notary concerned.” 11. Form XIII contained in the Rules prescribing the form in which complaint is to be made is as under : “FORM XIII FORM OF COMPLAINT Before the appropriate Government under the Notaries Act, 1952 Between.........................................................................petitioner and …........................................................................Respondent Petitioner’s address...................................................................... Respondent’s address.................................................................. Particulars of complaint in Paragraphs consecutively numbered.............................................. Particulars of evidence oral and documentary, if any, to substantiate the complaint............................ Verification I,....................................................., the petitioner to hereby declare that what is stated above is true to the best of my information and belief. Verified today the ….................day of …......20...............at........... Signature” 12. From the perusal of the aforesaid provision it is apparent that a Notary can be removed for professional or other misconduct if the charges are established in an enquiry conducted in a prescribed manner. Verified today the ….................day of …......20...............at........... Signature” 12. From the perusal of the aforesaid provision it is apparent that a Notary can be removed for professional or other misconduct if the charges are established in an enquiry conducted in a prescribed manner. Rule 13 vests the appropriate Government with the power to initiate an enquiry into the misconduct of a Notary either suo motu or on a complaint received in Form XIII. Sub-rule (2) of Rule 13 provides that the particulars to be contained in the complaint made against Notary and in case the complaint is not in the proper form then the same is to be returned back to the complainant to remove the objection within the time specified by the appropriate Government as provided by sub-rule (3). However, under sub-rule (5) a copy of the complaint is required to be served upon the Notary along with the statement of the charges together with the particulars to file written statement in his defence. Under sub-rule (6) the appropriate Government can consider that if a prima facie case is made out against the notary, it shall cause an inquiry to be made in the matter by the competent authority. In case, the appropriate Government is of the opinion that no prima facie case is made out, the complaint shall be filed and the Notary shall be informed accordingly. 13. From the aforesaid procedure prescribed under Rule 13, it is clear that before a regular enquiry into the charges levelled against the Notary, a preliminary enquiry is required to be conducted by the State Government after opportunity of defence to the Notary to arrive at a satisfaction that a prima facie case for a regular enquiry is made out. 14. It is well settled that when law requires something to be done in a particular manner, anything done otherwise is illegal. Privy Council in the case of Nazir Ahmad v. King Emperor, AIR 1936 PC 253 has observed as under : “when a statute requires anything to be done in a particular manner it must be done in that manner or not at all.” 15. Same view has been followed and reiterated by the Hon’ble Apex Court in a catena of cases. Same view has been followed and reiterated by the Hon’ble Apex Court in a catena of cases. Reference may be made to the cases of Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh, AIR 1954 SC 322 ; State of U.P. v. Singhara Singh and others, AIR 1964 SC 358 ; 1977(7) SCC 614; UPSC v. S. Papeiaph and others, Chandra Kishore Jha v. Mahaveer Prasad and others, AIR 1999 SC 3558 ; State of Maharashtra and another v. Jalgaon Municipal Council and others, AIR 2003 SC 1659 ; 2003(3) BLJR 2228; Larson and Tubro Limited v. State of Bihar, Commissioner of Income-tax, Chandigarh v. M/s. Pearl Mech. Engg. and Foundry Works (P) Ltd., AIR 2004 SC 2345 . Reference may also be made to the following observation of the Hon’ble Apex Court in the case of Competent Authority v. Bangalore Jute Factory and others, 2005 (13) SCC 477 — “it is well settled law that where the statute requires a particular act to be done in a particular manner, the act is to be done in that manner alone. Every word of the statute has to be given its due meaning.” 16. A bare perusal of the copy of the complaint, which has been filed as Annexure-4 to the writ petition, goes to show that it was not made in prescribed Form XIII, inasmuch as, the same neither contains the address of the complainant nor the address of the notary. Form-XIII further requires the complaint to be verified by the complainant and, admittedly, there is no verification made by the complainant. Sub-rule (2) clearly provides that the complaint shall contain the specific particulars. The use of word “shall” is important and in our opinion, is mandatory. Thus any complaint, which does not adhere to the form prescribed by sub-rule (2), would vitiate the enquiry instituted on the basis of complaint. Further, before a regular enquiry could be directed against the notary by the competent authority, the State Government is required to satisfy itself with respect to a prima facie case against the notary requiring a regular enquiry into the charges. 17. In the case in hand, there is no material on record wherefrom it can be held that any preliminary enquiry was conducted by the State Government for prima facie satisfaction to hold a regular enquiry against the petitioner. 17. In the case in hand, there is no material on record wherefrom it can be held that any preliminary enquiry was conducted by the State Government for prima facie satisfaction to hold a regular enquiry against the petitioner. On the contrary, the enquiry was conducted by the District Judge, Mahoba suo motu, on the complaint referred to him, by this Court. Thus, in the absence of any subjective satisfaction by the State Government after preliminary enquiry, the enquiry conducted against the petitioner by the District Judge which forms the basis of the impugned order of his removal, is totally in violation of the procedure prescribed by Rule 13 and thus stands vitiated. 18. In view of the aforesaid facts and circumstances of the case and also in view of the exposition of law, we are of the considered view that the procedure prescribed for enquiry into the charges levelled against the petitioner, was not complied with and thus, the impugned order stands vitiated and cannot sustain. 19. We, accordingly, allow the writ petition and quash the impugned order dated 30.3.2000 passed by respondent No. 2. However, it would be open for the respondents to proceed afresh against the petitioner in accordance with law. No order as to costs. ————