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Gujarat High Court · body

2016 DIGILAW 220 (GUJ)

Rameshchandra Maganbhai Oza v. State of Gujarat

2016-01-29

N.V.ANJARIA

body2016
JUDGMENT : By filing the present petition under Article 226 of the Constitution, the petitioner has challenged order dated 12.09.2014 passed by the State Government canceling the certificate of the petitioner to practice as a Notary. 2. A mismatch in the pleadings and the prayer was noticed at the outset. In paragraph 2 of the petition, what is averred is that the order under challenge is of canceling the certificate as Notary and further perpetually debarring the petitioner to practice as Notary. The impugned order however provides for the penalty only of cancellation of the certificate. The case and contentions of the petitioner in the present petition therefore have been considered in light of the said factual position. 3. The petitioner’s case in the petition is that he has been an advocate-cum-notary in the City Civil Court at Ahmedabad. He was granted certificate with effect from 27.02.2009 under the Notarys Act, 1952 to practice as a Notary for a period of five years throughout Ahmedabad Taluka/City of Ahmedabad District. One Shakriben Bhikhabhai Patel, resident of Ahmedabad, sent a notice dated 12/14.10.2010 to the petitioner alleging that the petitioner was careless, while notarizing the signatures in the execution of a declaration on 13.08.2009; the said declaration deed, was signed by three persons, (i) Lilaben Dahyabhai Patel, (ii) Shakriben Bhikhabhai Patel and (iii) Vijayaben Kantilal Patel on the aforesaid date. The petitioner alleged to have identified the said three persons though they were allegedly not present. According to said complainant of Shakriben, the fact of their signatures identified in their absence came to their knowledge when the said declaration was presented somewhere between February, 2010 to August, 2010. It was stated that the copy was obtained under the Right to Information Act, 2005. 3.1 Petitioner filed reply dated 26.10.2010 denying the allegations. The petitioner in his reply stated about investigation done by the Satellite Police Station and also mentioned about a Civil Suit filed by the said three sisters in respect of the property in question to submit that he was not at fault but was falsely involved with allegations. It appears that yet another communication dated 27.10.2010 was sent stating inter alia that explanation given by the petitioner was not acceptable to said Shakriben and other persons concerned. It appears that yet another communication dated 27.10.2010 was sent stating inter alia that explanation given by the petitioner was not acceptable to said Shakriben and other persons concerned. 3.2 It appears that a copy of aforesaid notice of Patel Shakriben came to be sent to the office of the Secretary, Legal Department-respondent No.1 herein and on the basis of which Legal Department issued show cause notice dated 11.04.2011 calling upon the petitioner-Notary to give his explanation in respect of the allegations levelled. Petitioner submitted a detailed reply dated 11.05.2011 and also enclosed therewith a copy of the reply, which the petitioner had given to the earlier notice sent by the complainant to reply on its contents. It appears that by letter dated 20.06.2011, the petitioner was asked to remain present before the competent authority on 30.06.2011. The petitioner at that stage on 24.01.2012 again made written submissions. The petitioner made further submissions on 19.03.2012 to point out that during the police investigation also, no irregularity was attributed to the petitioner-Notary. 3.3 The petitioner at that time had an occasion to file Special Civil Application No.5978 of 2012 before this Court. That petition came to be disposed of by order dated 29.11.2012 and was allowed to the extent that the Court directed the authorities to issue fresh notice and take out a de novo proceedings. Pursuant to the said order, a notice dated 15.03.2013 came to be issued to the petitioner requiring him to submit explanation within 14 days. The petitioner prayed for time, further notices were issued by the authority to the petitioner; a notice dated 13.12.2013 was also issued to said Patel Shakriben to remain present and represent the case. Similar notices were issued to other two persons also, the notarization of whose signatures was complained of. They were called upon to remain personally present on 21.01.2014, on 23.01.2014 and further on 05.02.2014. It is an admitted position that despite the said several notices, nobody of them remained present on any of the aforesaid dates. The petitioner submitted his written arguments on 26.02.2014 and defending himself. Afterwards followed the impugned order. 4. Learned advocate for the petitioner Mr. Bhargav Karia submitted that the impugned order is liable to be set aside only on the ground of it being non-revealing of the reasons for its decision. The petitioner submitted his written arguments on 26.02.2014 and defending himself. Afterwards followed the impugned order. 4. Learned advocate for the petitioner Mr. Bhargav Karia submitted that the impugned order is liable to be set aside only on the ground of it being non-revealing of the reasons for its decision. In other words, it was submitted that the order totally lacks in reasons and none of the aspects of the matter, much less the contentions of the petitioner as well as the defence raised in the replies, have been considered. Learned advocate for the petitioner further submitted that the order of penalty was once challenged before this Court and this Court upon setting aside the order then, remitted the case for proceeding anew. 4.1 Learned advocate for the petitioner submitted that on the facts of the case, no misconduct could be said to be have been committed by the petitioner. He submitted that important evidentiary considerations such as the statement of advocate of the other side, the outcome of the police investigation and the conduct of the complainant and two other signatories, etc., have been plainly overlooked and disregarded while passing the order of penalising the petitioner-Notary. It was submitted without prejudice to other contentions that the order is too harsh to be sustained in law. 4.2 The next contention on behalf of the petitioner was that Rule 13(1) of the Notaries Rules, 1956 provides that an inquiry into the misconduct of a Notary may be initiated either suo moto or upon a complaint received in Form 22. There is a statutory prescribed Form in the Rules for complaint which may be made against Notary with further requirement that it has to be forwarded within 60 days. 4.3 Learned advocate for the petitioner without prejudice to the other submissions next contended that different penalties are prescribed in sub-rule (12) of Rule 13 and that the authority is bound to apply its mind for imposition of penalty in light of the gravity of the misconduct alleged against the Notary concerned. It was his submission that penalty of cancellation of licence to practice as a Notary is too harsh a punishment to be justified in the facts and circumstances of the case. 4.4 By filing affidavit-in-reply the Under Secretary, Legal Department, raised various contentions. Learned Assistant Government Pleader Mr. It was his submission that penalty of cancellation of licence to practice as a Notary is too harsh a punishment to be justified in the facts and circumstances of the case. 4.4 By filing affidavit-in-reply the Under Secretary, Legal Department, raised various contentions. Learned Assistant Government Pleader Mr. Bharat Vyas relied on the contents and the contentions in the affidavit-in-reply, to submit that the petitioner affirmed the signatures of the persons in the declaration deed in question without any advocate identifying the same. It was submitted that the petitioner’s defence that they relied on the said three persons who claimed to be the sisters of worker of a political party was indicative in itself. It was submitted that the order was passed after giving sufficient opportunity to the petitioner and the complainants, wherein the complainants did not remain present and the petitioner’s reply was considered by the authority who thereafter passed the impugned order. 5. From the record of the case, the replies sent by the petitioner-Notary and from the submissions made by his learned advocate, it could not be gainsaid that various substantive defences on merits are raised against the impugned action and the order against the petitioner. A striking aspect emerges that though the said Shakriben sent a notice in the nature of complaint to the petitioner and the authority, neither she nor the other two persons namely Lilaben and Vijayaben ever not turn up thereafter in response to the notice by the authority to vouchsafe and their allegations; they remained absent and virtually gave up their case by their conduct. The second important aspect is that though the complaint was that the signatures were notarized in absence, clear or specific allegation did not come-forth that they had not signed the document; in other words, the factum of signatures of said three persons was not disputed, and what was disputed was their presence. This necessarily reflects on the veracity of the complaint, learned advocate for the petitioner could forcefully submit. 5.1 It was further stated that the said three persons-sisters had personally come with son of one of them in Maruti Zen motorcar and only because an advocate identified the same, the petitioner notarized against their signatures. This necessarily reflects on the veracity of the complaint, learned advocate for the petitioner could forcefully submit. 5.1 It was further stated that the said three persons-sisters had personally come with son of one of them in Maruti Zen motorcar and only because an advocate identified the same, the petitioner notarized against their signatures. It is the case of the petitioner that son of one of the signatories was a member of political party and to grind their own purpose, they subsequently levelled allegations against the petitioner. The defence of the petitioner was also that the Satellite Police Station carried out investigation and recorded statement of the persons concerned including the advocate one Vinodbhai D. Gajjar of the said three persons. Neither in the investigation report nor in the statement of the said advocate, anything was stated or revealed so as to attribute anything against the petitioner, rather the statement of the advocate supported the case of the petitioner. 5.2 It was next pointed that in the background there was a civil dispute and in connection with such dispute of which the declaration in question was executed. It appears that a Civil Suit before the Civil Judge, Ahmedabad (Rural) was instituted by the said three persons against their brothers, in which a part settlement was arrived at against some of the defendants and against the other family members, dispute about the partition of share in the family property is still being pursued and in that connection, declaration was executed. It is the case of the petitioner that because of their internal disputes, subsequently, wrong allegations came to be made against the petitioner who acted as Notary with due care. 6. All the aforesaid are the aspects of the case and they formed part of the defence of the petitioner. The petition contained pleadings on those counts in detail and learned advocate for the petitioner elaborated the same in canvassing his submissions. However some of them being factual and the other bearing close nexus to them, the Court considered it not appropriate to go into it in deep and to express any final opinion thereon, more particularly when the impugned order was found to be failing to sustain on other clear legal considerations. 7. However some of them being factual and the other bearing close nexus to them, the Court considered it not appropriate to go into it in deep and to express any final opinion thereon, more particularly when the impugned order was found to be failing to sustain on other clear legal considerations. 7. Adverting to deal with the contentions on the legal merit of the impugned action and penalty against the petitioner, the aspect that the complaint upon which the inquiry was initiated was not filed in the prescribed formate in accordance with the statutory Rule stares on the context of the entire proceedings. In view of the decision of the High Court of Allahabad in Mohammad Sharif Vs District Judge, Mahoba [2010(1) All.L.J. 794], wherein the Division Bench of the said High Court took view that complaint not filed in prescribed Form would vitiate the inquiry, lends a direct support to the said contention of learned advocate for the petitioner in the present case. The Allahabad High Court in paragraph 16 observed as under:- “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.” (Para 16) 7.1 It is trite principle that when a statue or statutory Rule requires a particular thing to be done in a particular manner, the same will have to be done in the same manner. There is no reason as to why this principle should not be extended in respect of compliance about filing of the complaint against a Notary under the Rules, the reason being, the format statutorily prescribed for the complaint specifies the basic particulars to be mentioned therein. The kind particulars and their details are indicated. It is such complaint with such prescribed particulars and details which would help the authority to apply mind and decide about further process thereof. The complaint, only if duly filed in accordance with the prescribed particulars, may form basis for valid initiation of inquiry and action against a Notary. The absence of above is the second vice and infirmity in the present case. 8. The submission of learned advocate for the petitioner could be well countenanced that the order is an unreasoned order. The only statement which the impugned order recorded is that the petitioner-Notary did not verify the identity of the persons while attesting their signatures which amounted to dereliction in duty and that the said finding was reached after giving opportunity to both the sides. Firstly, such expression cannot be said to be recording of reasons for the ultimate order of penalty passed by the respondents. The order based on such reasoning is not a reasoned order in eye of law. The order remains cryptic unable to sustain on the said sole ground. Not only that, when it is recorded that the conclusion is reached by hearing both the sides, it is only half-truth in as much as, admittedly the three persons whose signatures were the matter of investigation and the complainant herself opted not to remain present before the authority and never participated in the inquiry to confirm about what was stated in the complaint and conducted themselves conspicuous by their consistent absence. Therefore also, this aspect was in the realm of lack of reasons. 8.1 Legal importance of the reasons in an order was explained by the Supreme Court in Daya Ram v. Raghunath [ (2007) 11 SCC 241 ] in the following words. “Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. 8.1 Legal importance of the reasons in an order was explained by the Supreme Court in Daya Ram v. Raghunath [ (2007) 11 SCC 241 ] in the following words. “Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking order.” 8.2 Recording of reasons is an aspect of natural justice. The reasons properly recorded in support of an order is the natural justice duly complied with in that part. The principle that the reason in an order is an ingredient of natural justice becomes clear from the following judgment of the Supreme Court in Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla & Bros., [ (2010) 4 SCC 785 ], the Apex Court observed as under, “The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities.......” (Para 14) 8.3 As far as the impugned order is concerned, a vice of it being non-speaking and unreasoned order stands aggravated and in its degree becomes a vitiating factor. It is because for the reason that previously the petitioner had filed Special Civil Application No.5978 of 2012 in respect of the very penal action. It is because for the reason that previously the petitioner had filed Special Civil Application No.5978 of 2012 in respect of the very penal action. This Court by order dated 29th November, 2012 while allowing the petition in part recorded inter alia that show cause notice dated 11th April, 2011 issued to the petitioner was without application of mind and the order dated 09th April, 2012 then passed and impugned in that petition also did not contain any cogent reasons assigned by respondent No.2 authority. By that order, petitioner came to be debarred permanently from practicing as Notary. 8.4 This Court while partly allowing and remitting the matter for exercise afresh, had observed and held- “From the order impugned dated 9.4.2012, it appears that no cogent reason is assigned by the Authority for debarring the petitioner to practice as Notary under the Provisions of Notaries Act, 1952 and even it is not specified in the order as to which of the provisions of the Act or Rules is violated by the petitioner and it is called as non-speaking order. Therefore, I am in total agreement with the submissions made by the learned advocate Mr. Karia that in absence of reasoned order, the order is required to be quashed and set aside. Therefore, the order dated 9.4.2012 coupled with show cause notice dated 11.4.2011 are quashed and set aside in the interest of justice.” 8.5 Thus Earlier order was also non-reasoned order. The impugned order now passed after the aforesaid order of this Court, is found to be suffering from the same vice and infirmity. 9. There is yet another important vitiating factor. An attentive reading of the affidavit-in reply of the Under Secretary, Legal Department, in particular the averments in paragraph 6 thereof showed to have stated thus:- “The State Government is presently faced with several instances of malpractices by Notaries and hence whenever such instances are brought to its notice, cancellation of the licence is the least that can be done under the circumstances.” The authority affirming the affidavit is unequivocal in making such general observations on oath. 9.1 Upon referring to the said averments and the ground when learned advocate for the petitioner submitted that such vague and general consideration has weighed with the authority in taking the impugned action, the said submission could not be brushed aside. 9.1 Upon referring to the said averments and the ground when learned advocate for the petitioner submitted that such vague and general consideration has weighed with the authority in taking the impugned action, the said submission could not be brushed aside. As the averments reflect the mind of the authority and the basis for the order, and such is the inevitable inference to be drawn from the omnibus averments, the order stands vitiated by this very factor. Noticeably, the person who passed the impugned order in his capacity as authority of the State Government, is the very person who sworn the affidavit-in-reply on behalf of the respondents, adding to the vitiating factor. 9.2 Any authority statutorily vested with a power of decision making, when in his decisional process gets influenced by general impression and omnibus reports rather than basis its decision on specific grounds and individual facts relevant to the subject-matter, its decision vitiates as there necessarily creeps in the element of irrationality. Irrationality breeds unreasonableness. Irrationality and unreasonableness are the bonded friends of arbitrariness, ultimately turning the tenets of Article 14 upside down. The impugned decision, because of above general consideration having manifestly gone into the decisional process of the decision-making authority, makes the decision irrational and arbitrary, therefore liable to be set aside on the ground of disregard and breach of Article 14 of the Constitution. 10. For all the aforesaid reasons and discussion, impugned order dated 12.09.2014 cancelling the petitioner’s certificate from practicing as a Notary, deserves to be set aside. The same is hereby quashed and set aside. While the said order could not sustain, the appropriate government if of the opinion that in the facts of the case, cogent grounds exist for imposing penalty on the petitioner other than the penalty imposed under the impugned order now set aside, that is penalty other than mentioned in (i) of clause (b) of sub-rule (12) of Rule-13 of the Notaries Rules, 1956 is liable to be imposed on the petitioner, the appropriate government is at liberty. It is however observed that if the appropriate government considers such course to be meritorious to be opted, such recourse would be only after having regard to and in accordance with what is held in this judgment and shall further be subject to right of the petitioner to challenge, if adverse, before the Court of law in accordance with law. It is however observed that if the appropriate government considers such course to be meritorious to be opted, such recourse would be only after having regard to and in accordance with what is held in this judgment and shall further be subject to right of the petitioner to challenge, if adverse, before the Court of law in accordance with law. 10.1 It deserves to be recorded that though one of the grounds accepted hereinabove to render the impugned order infirm is the complaint not being in the prescribed form as per the Rule concerned which as such stands at the threshold, since on the basis of the complaint the procedure for inquiry-cum-action was commenced and during the progress the facts and factual aspects were brought to the fore, into which this court would be loath to go into to arrive at a factual finding while exercising the writ jurisdiction, the above liberty for the appropriate government is kept available to conclude for itself. 11. The present petition stands allowed as above. Rule is made absolute in the terms above. In the facts and circumstances of the case, there shall be no order as to cost. Application allowed.