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Rajasthan High Court · body

2011 DIGILAW 305 (RAJ)

Arvind Kumar Sharma v. State of Rajasthan

2011-02-09

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—By this writ petition, a challenge has been made to the order dated 20.8.2008 whereby petitioner's registration as Notary Public was canceled. 2. It is case where the petitioner approached Civil Court apprehending cancellation of his registration as Notary. Injunction application under Order 39 Rule 1 and 2 of CPC was not dismissed as the order dated 20.8.2008 was not challenged. This is precisely for the reason that the Civil Court was approached earlier to the passing of the order dated 20.8.2008, accordingly, petitioner withdrew the Civil suit and preferred this writ petitioner. 3. The counsel for the petitioner submits that if the provisions of Notaries Act of 1952 (in short the Act of 1952) and Notary Rules of 1956 (hereinafter referred as the Rules of 1956) are looked into, the petitioner was authorized to prepare "Moka" report and reduce it in writing. Referring to Rule 11 of Rules 1956, it is submitted that Notary can draw, attest or certify a document under his official seal which includes conveyance of properties. Similarly, he can note and certify general transactions relating to negotiable instruments. He can prepare a will or other testamentary documents and authorize to prepare affidavits for various purposes. Referring to the aforesaid, it is submitted that petitioner had prepared "Moka" report at the instructions of the one party, hence preparation of "Moka" report cannot be said to be beyond the purview of Rule 11 of the Rules of 1956. It is further submitted that even if the petitioner had prepared "Moka" report, no prejudice was caused to the either of party in view of the fact that subsequently even when Commissioner made "Moka" report pursuant to the directions of the courts, it gave similar report. Even if the act of the petitioner is still found beyond Rule 11 of Rules 1956 and Section 8 of the Act of 1952, severe punishment of removal should not have been imposed. 4. According to the petitioner, even inquiry was conducted without following provisions of Rule 13 of Rules 1956. Petitioner was given no opportu-nity of hearing. More so when first factual report is favourable to the petitioner. In view of the violation of the principle of natural justice, the order dated 20.8.2008 deserves to be set aside. 4. According to the petitioner, even inquiry was conducted without following provisions of Rule 13 of Rules 1956. Petitioner was given no opportu-nity of hearing. More so when first factual report is favourable to the petitioner. In view of the violation of the principle of natural justice, the order dated 20.8.2008 deserves to be set aside. This is apart from the fact that even in the order under Section 10 of the Act 1952, Government has to record the opinion showing professional misconduct. Perusal of the order does not show the aforesaid. The requirement of Sec. 10(d) has not been complied with. In view of that also, the impugned order dated 20.8.2008 deserves to be set aside. 5. It is lastly argued that if this court is not inclined to set aside the impugned order, the petitioner may be given liberty to make out his case for fresh appointment without prejudice the order under challenge. 6. Learned counsel for the respondents, on the other hand, submits that Rules 11 of the Rules of 1956 does not authorize petitioner to prepare "Moka" report. The preparation of "Moka" report was an unauthorized act being contrary to Rule 11 of the Rule, 1956. Looking to the complaint against him, an inquiry was conducted. Therein, charge was found proved, thus, impugned order was passed by the Government after recording its satisfaction regarding professional misconduct. Rule 13 of the Rules of 1956 does not postulate an opportunity of hearing during the course of inquiry. In any case the petitioner having raised all the issues before this Court, thus, instead of sending the case for post decisional hearing, issues may be decided by this court itself. It is further submitted that the Commissioner appointed by the court and submissions of report similar to what has been submitted by the petitioner does not take away his lapse to work outside the authority given to a notary. Hence the order passed by the competent authority on 20.8.2008 cannot be said to be illegal in any manner. So far as the issue for fresh consideration of candidature for appointment of notary is concerned, if direction is given by the court, the Government will undertake necessary exercise in that regard. 7. I have considered submissions made by learned counsel for the parties. 8. So far as the issue for fresh consideration of candidature for appointment of notary is concerned, if direction is given by the court, the Government will undertake necessary exercise in that regard. 7. I have considered submissions made by learned counsel for the parties. 8. The first argument raised by the petitioner is that in reference to Section 8 of Act of 1952 and Rule 11 of Rules of 1956, thus both the provisions are quoted herein under for ready reference. 8. Functions of notaries.- (1) A notary may do all or any of the following acts by virtue of his office, namely: (a) Verify, authenticate, certify or attest the execution of any instrument; (b) Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security; (c) Note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act (XXVI of 1881) or serve notice of such note or protest; (d) Note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters; (e) Administer oath to, or take affidavit from, any person; (f) Prepare bottomry and respondent a bounds, charter parties and other mercantile documents; (g) Prepare, attestor authenticate any instrument intended to take effect in ally country or place outside India in such form and language as may conform to the, law of the place where such deed is entitled to operate; (h) Translate and verify the translation of, any document from, one language into another; (i) Any other act, which may be prescribed. (2) No act specified in subsection (1) shall be deemed to be a notarial act except when a notary under his signature and official seal does it. 11. Transation of business by a notary A notary in transacting the business under the Act shall use the forms set forth in the Appendix to these rules. (2) Besides recording declaration of payment for honour a notary shall also register noting and protests made. Every notary shall maintain a notarial register in the prescribed Form XV. 11. Transation of business by a notary A notary in transacting the business under the Act shall use the forms set forth in the Appendix to these rules. (2) Besides recording declaration of payment for honour a notary shall also register noting and protests made. Every notary shall maintain a notarial register in the prescribed Form XV. (3) Where any demand of acceptance or payment or better security has been made by a clerk, a notary shall, after examination of the entry in the register relating to such demand, affix his signature thereto, and cause the clerk to affix his signature also to the entry. (4) Each notary shall, before bringing the notarial register into use, add a certificate on the title page specifying the number of pages it contains. Such certificate shall be signed and added by the notary. (5) Every notary shall permit the District Judge or such officer as the appropriate government from time to time appoints in this behalf to inspect his register at such times, not other than twice a year, as the District Judge or officer may fix. District Judge or officer appointed by the State Government will have power to lodge a report to the appropriate government for taking action against a notary. (6) When the original instrument is in a language other than English any noting or protest or entry in his register which has to be made in respect of the instrument by a notary may be made either in that language or in English. (7) In making presentment of bills or notes a notary shall observe the provisions of Chapter V of the Negotiable Instruments Act, 1881 (XXVI of 1881). (8) The notary may- (1) draw, attest or certify documents under his official seal including conveyance of properties; (2) note and certify the general transactions relating to negotiable instruments; (3) prepare a will or other testamentary documents; and (4) prepare and take affidavits for various purposes for his notarial acts. (9) Every notary shall grant a receipt for the fees and charges realied by him and maintain a register showing all the fees and charges realised. 9. Perusal of the provisions quoted does not show authority of a notary to prepare "Moka" report. (9) Every notary shall grant a receipt for the fees and charges realied by him and maintain a register showing all the fees and charges realised. 9. Perusal of the provisions quoted does not show authority of a notary to prepare "Moka" report. Looking to the aforesaid it cannot be said that preparation of "Moka" report by the petitioner is within the purview of section 8 of the Act or Rule 11 of Rules of 1956 as quoted above. First arguments raised by the petitioner, accordingly fails. 10. So far as the second issue raised is concerned, I find that even if the commissioner appointed by the court gave similar report as has been submitted by the petitioner, the professional misconduct of the petitioner is not nullified. 11. As per section 10 of the Act of 1952, action taken on professional misconduct can result in removal and no lesser punishment is provided. Accordingly, the argument raised regarding imposition of severe/rigorous punishment does not provide any assistance to the petitioner. 12. So far as the other arguments regarding violation of principal of natural justice is concerned, I find that all the issues having been raised before me and I am dealing with those. Thus sending the matter back for passing fresh order would be no consequence. It is true that opportunity of hearing is to be given against whom an adverse order is passed, but it is not a fit case to send for post decisional hearing, as all the issues are decided herein. Taking the note of the aforesaid, I am not inclined to remand the case for providing opportunity of hearing to the petitioner in the facts and circumstances of the case. 13. The question now comes as to whether the impugned order is in conformity to the provisions of Section 10(4) of the Act of 1952. Section 10(4) of the Act of 1952 is quoted as under: 10. 13. The question now comes as to whether the impugned order is in conformity to the provisions of Section 10(4) of the Act of 1952. Section 10(4) of the Act of 1952 is quoted as under: 10. 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 undercharged 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 notary. 14. The quoted provision shows that if a person is held guilty of professional or other misconduct in the opinion of the Government, he may be rendered unfit to practice as a notary. Perusal of the order dated 20.8.2008 shows that after recording misconduct of the petitioner, order has been passed by the competent authority. This is nothing but an opinion in conformity with the provisions of section 10(d) of the Act of 1952. Accordingly even aforesaid issue raised by the petitioner does not impress me, hence rejected. 15. So far as the last prayer made by the petitioners is concerned, I am inclined to accept the same. It may be that under given circumstances, petitioner prepared `Moka' report. The cancellation of registration as Notary may be justified at that point of time but the petitioner should not be rendered unfit forever to be a notary. The petitioner has lastly urged an apology keeping in view the judgment given of AIR 1969 Allahabad (State Govt. of Uttar Pradesh vs. Kashi Prasad Saksenaj. Thus, while upholding the order dated 20.8.2008, petitioner is given liberty to make an application for appointment as notary. Respondents are expected to consider the same without bias pursuant to the impugned order. 16. With the aforesaid, The writ petition stands disposed of with no order as to costs.