Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 71 (ORI)

NITYANANDA BEHERA v. STATE OF ORISSA

2010-02-05

B.P.DAS, S.C.PARIJA

body2010
JUDGMENT S. C. PARIJA, J. ( 1 ) THE decision of the state Government in the Law Department not to renew the Notarial Certificate of Practice of the petitioner, with effect from 16-7-1998, is under challenge in the present writ petition. ( 2 ) THE case of the petitioner, as detailed in the writ petition, is that he enrolled as an advocate under the,state Bar Council in the year 1972 and started practice at Baripada. On completing more than ten years of active practice as an advocate, the petitioner made an application in the prescribed form accompanied by requisite fees, for being appointed as a Notary. The State Government appointed the petitioner as a Notary, for a period of three years, with effect from 16-7-1983, as per the notarial Certificate of Practice dated 16-7-1983 (Annexure-1 ). The said Notarial Certificate of Practice was renewed from time to time, authorising the petitioner to practice as a Notary. ( 3 ) IN the year 1998, the petitioner applied for renewal of his Notarial Certificate of practice and accordingly submitted application with requisite fees. While the renewal was pending, the petitioner was served with a show cause notice from the State Government in the Law Department dated 8-1-1998, on various false allegations of misconduct, which were on the basis of anonymous letters purported to have been received from some persons. The petitioner filed his reply to the said show cause notice. The State Government thereafter initiated suo motu enquiry and after completion of such enquiry, the state Government in the Law Department, considering the nature and gravity of the misconduct, vide its letter dated 22-6-2004 (Annexure-5), warned the petitioner to be careful in future for his misconduct, as per rule 13 (12) (b) (iii) of the Notaries Rules, 1956, (hereinafter referred to as the 'rules' ). ( 4 ) AFTER conclusion of the enquiry proceeding and award of the punishment of warning, the petitioner submitted representation to the State Government in the Law department, requesting for renewal of his notarial Certificate of Practice, which had been pending consideration since 1998. Instead of granting renewal, the petitioner was served with a letter dated 1-5-2006 (Annexure-8), intimating him that the State Government has been pleased not to renew his Notarial Certificate of Practice with effect from 16-7-1998, since he has been severely warned vide order dated 22-6-2004. Instead of granting renewal, the petitioner was served with a letter dated 1-5-2006 (Annexure-8), intimating him that the State Government has been pleased not to renew his Notarial Certificate of Practice with effect from 16-7-1998, since he has been severely warned vide order dated 22-6-2004. ( 5 ) THE grievance of the petitioner is that the enquiry proceeding initiated for alleged misconduct having been concluded by the state Government as provided under Rule 13 of the Rules and the petitioner having been severely warned to be careful in future, as provided under Rule 13 (12) (b) (iii) of the said rules, it was not open for the State Government to decline renewal of his Notarial Certificate of Practice. In this regard, it is submitted that as renewal is automatic, as provided under Section 5 (2) of the Notaries Act (hereinafter referred to as the 'act'), the State government had no discretion in the matter and the petitioner was entitled to renewal of his Notarial Certificate of Practice, as a matter of course, merely on making an application and payment of prescribed fees. ( 6 ) LEARNED counsel for the opposite parties 1 and 2, with reference to the counter-affidavit filed, submitted that the proposal for renewal of Notarial Certificate of Practice of the petitioner for further period of three years, with effect from 16-7-1998, was kept pending till finalisation of enquiry initiated against him. In the said enquiry, prima facie case of misconduct as a Notary was proved for which the petitioner was severely warned to be careful in future with regard to his conduct, as provided under Rule 13 (12) (b) (iii) of the rules. In view of the above misconduct of the petitioner, the State Government in the law Department decided not to renew his notarial Certificate of Practice, which has been communicated to the petitioner vide letter dated 1-5-2006 as per Annexure-8 to the writ petition. Accordingly, it is submitted that the said decision of the State Government cannot be faulted. ( 7 ) SECTION 5 of the Act provides for the entry of names in the Register and issue or renewal of certificates of practice, which reads as under: " (1) Every notary who intends to practice as such, may, on payment to the Government appointing him of the prescribed fee, if any, be entitled. ( 7 ) SECTION 5 of the Act provides for the entry of names in the Register and issue or renewal of certificates of practice, which reads as under: " (1) Every notary who intends to practice as such, may, on payment to the Government appointing him of the prescribed fee, if any, be entitled. (a) to have his name entered in the Register maintained by that Government under section 4; and (b) to a certificate authorizing him to practise for a period of five years from the date on which the certificate is issued to him. (2) The Government appointing the notary, may, on receipt of an application and the prescribed fee, renew the certificate of practice of any notary for a period of five years at a time. " ( 8 ) ON a reading of the aforesaid statutory provisions, it is seen that the use of the word "may" and the words 'be entitled' in Section 5 (2) makes it abundantly clear that there is no residuary discretion vested in the State government at the time of renewal of an application filed by a Notary. A Notary, once registered as such, is entitled to renewal as a matter of course, merely on making an application and payment of requisite fees, as prescribed in the Rules. Hence, Section 5 (2)of the Act is mandatory and the right of renewal is automatic and there is no discretion vested in the State Government to refuse such renewal. (See State of Kerala and others v. K. U. Narayana Poduwal and others, AIR 1992 Ker 152 ). ( 9 ) IN the present case, admittedly the State government had initiated a suo motu enquiry against the petitioner on the basis of certain allegations and after conclusion of enquiry, the petitioner having been found to be guilty of certain misconduct, he had been let off with a warning, keeping in view the nature and gravity of misconduct proved against the petitioner, as provided under Rule 13 (12) (b) (iii) of the Rules. ( 10 ) RULE 13 (12) (b) of the Rules reads as under: " (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. " ( 11 ) IN view of the fact that the State Government had already exercised its power under Rule 13 (12) (b) (iii) of the Rules, letting off the petitioner with a warning, considering the nature and gravity of the misconduct proved against him, the same could not have been the basis for refusing renewal of his notarial Certificate of Practice, inasmuch as, the petitioner could not have been punished twice for the same offence. Moreover, the said provision contained in Rule 13 of the rules does not provide for refusal of renewal of a Notarial Certificate of Practice on the ground of misconduct, by way of punishment. ( 12 ) APPLYING the principles of law as discussed above to the facts of the present case, the conclusion is irresistible that the impugned decision of the State Government as communicated to the petitioner vide letter dated 1-5-2006 (Annexure-8), refusing to renew his Notarial Certificate of Practice is not proper and justified and the same is accordingly quashed. The opposite parties are directed to grant necessary renewal to the petitioner, as per the provision of the Rules, within four weeks hence. Writ Petition is accordingly allowed. Petition allowed. --- *** --- .