JUDGMENT
Narendra Nath Tiwari, J.
1. In this writ petition the petitioner has prayed for quashing the notification as contained in Memo No. A/Note-Legal-76/2003-888/J, Ranchi dated 16.4.2007 (Annexure-5) whereby the petitioner’s application for renewal of certificate to practice as a Notary, has been rejected by the respondent No. 2 and the petitioner has been perpetually debarred from practising as a Notary.
2. the petitioner is a legal practitioner in Giridih District Court and was appointed as a Notary under the provisions of the Notaries Act, 1952 (hereinafter referred to as ‘the said Act’) by notification dated 26.4.97 issued by the Law Department, Government of Bihar (Annexure-1).
3. After expiry of the said period, the certificate for practicing as Notary was further renewed.
4. The petitioner has claimed that he had been discharging his duties as a Notary properly and there was nothing adverse against him since April 1997.
5. For the first time, notice to show cause dated 13.9.06 was issued to the petitioner under the signature of the Secretary, Legal (Justice) Department, Government of Jharkhand whereby the petitioner was asked to furnish explanation about the alleged irregularities reported by the Secretary of the Department on his surprise visit on 26.6.06, which were as follows: (i) Notary Register was not being maintained in accordance with Rule 15. (ii) Signature of the parties were not obtained in the register. (iii) Money receipts were not issued to the parties and as such there was no entry of receipt number in the register. (iv) The fee taken from the parties were not entered in the register. (v) The prescribed fee for notarial work was not mentioned. (vi) The rate of notarial fee was not displayed at the conspicuous place of the Notary Office. (vii) Column-II of the entry register was not properly maintained. (viii) At the time of inspection on 26.6.06, the petitioner had escaped with notary register and did not return even after a long waiting.
6. The petitioner filed his explanation to the show cause notice as follows:
(i) He maintains the notary register in accordance with Rule 15(ii) The signature of the parties were obtained in the notary register. (iii) However, the person who had got the notarial work done but their signature were not found in the register at the time of inspection by the District & Sessions Judge, Giridih, have been requested to put their signature which will be obtained. (iv) Only the prescribed fee for notarial work are being realized in accordance with the guidelines, but since there was no practice since long for issuing the money receipt, the receipt was not issued and on receiving the guidelines, arrangement is being made for issuing the money receipt and mentioning the number of receipt in the notary register. (v) All the notarial works are being discharged in accordance with the provisions of the Notaries Act, 1952. (vi) Fee for all the notarial works have been prescribed and only the fee prescribed for the works is taken. (vii) In Column II of the Notary Register signature of the petitioner on some places were missing, but the same was not intentional. The same could not be immediately done due to rush of the work and seizure of the register by the Inspecting Officer. The petitioner had taken the Notary Register for getting a Xerox copy of the Register in order to hand over the Original as required, but due to a long electrical power cut, the petitioner had to wait for the said purpose and by the time electricity was restored and he could get the Xeroxed copy and returned to submit the same, the Inspecting Officer had already left the place. The petitioner has expressed his regret for his inability to provide Xe-rox copy of the register due to the said reason beyond his control.
7. Some time after the submission of the said reply, the petitioner received Annexure-5 dated 16.4.07 whereby prayer for renewal of his license to practice as a Notary has been rejected and his name has been deleted from the Register of the Notaries debarring him from discharging the duty of Notary with immediate effect.
8. The petitioner has challenged the said order, inter alia, on the following ground(s): (a) The petitioner was not served with a copy of the complaint on the basis of which the action was taken against the petitioner which led to issuance of the impugned order (Annexure-5) debarring the petitioner from discharging the duties of Notary. (b) Under the provisions of the Notaries Rules, 1956 (hereinafter referred to as ‘the said Rules’), there is a prescribed Form for a complaint i.e. Form-XIII. The said Form requires verification of the complainant as also the particulars of the complaint in paragraph and the particulars of evidence, oral and documentary, if any, to substantiate the complaint. (c) The petitioner was not served with the complaint as required under Rule 13 of the Notaries Rules, 1956 and in absence thereof, the petitioner was not in a position to identify the complainant nor he could submit the effective explanation with regard to the note of inspection. (d) There was no complain against the petitioner since he was appointed as Notary in 1997 and the allegation of irregularities against him is absolutely, without any basis. (e) There was no enquiry with regard to the alleged irregularities found by the respondent No. 2 at any point of time. The petitioner was not informed with regard to any such enquiry and he had no occasion of defending himself in the alleged enquiry, conducted ex parte by learned District Judge, Giridih. (f) The impugned order (Annexure-5) passed without following the prescribed procedure of enquiry is unsustainable and is liable to the rescinded. (g) The petitioner has got statutory right under the provisions of the said Act as well as the said Rules framed therein to defend himself against the allegations, but the respondents ignored the mandatory provisions of law and issued the impugned order. (h) The impugned order has not been passed by the expropriate Government which is the only competent authority to pass such order.
9. The respondents have encountered the said grounds of the petitioner in their affidavit. According to the respondents, when the petitioner’s work was inspected on 26.6.07 at Giridih, a number of irregularities came to the notice of the inspecting authority and when the petitioner was asked to furnish the photo-stat copy of the Notary Register, he fled away and did not turn up even after a long wait. On 4.8.06, the District Judge, Giridih made an inspection of the works of different Notary Publics at Girdih. He found the petitioner not performing the notarial work properly. He found the petitioner guilty of not maintaining the notarial register in the prescribed form in accordance with the Notaries Acts and Rules. He submitted a detailed report. (ii) On receipt of letter dated 26.8.06, the petitioner was asked to explain the irregularities found during inspection. (iii) The petitioner submitted his explanation dated 6.10.06 in which he accepted that irregularities were found during the course of inspection and therefore admitted the said allegations against him. (iv) The impugned order has been passed when the petitioner was found guilty of not maintaining the Notary Register in the prescribed Form-XV as required by Rule 11(1) of the Notaries Rules, 1956. The petitioner’s claim of submission of return of notarial work appears to be incorrect. Action was taken against the petitioner and the order has been passed against him on the basis of the inspection made by the Additional Secretary of the Department and the District & Sessions Judge, Giridih. (v) Proper opportunity was given to the petitioner by asking explanation from him. (vi) The explanation submitted by the petitioner was not found satisfactory and on the basis thereof, the impugned order has been issued. Before appointment of a notary and also before renewal of notary license, report from District Judge and concerned Bar Association is called for by the Government. Since the District Judge himself reported against the petitioner after inspection, the State Government has taken the impugned decision for not renewing the petitioner’s license.
10. I have heard learned Counsel for the parties and carefully considered the facts and the materials brought on record as well as examined the relevant legal provisions.
11. The Notaries Act, 1952 empowers the Central and State Government to appoint Notaries for ail recognized notarial purposes and to regulate the profession of such Notaries. Section 3 of the Notaries Act provides that any legal practitioners or other persons who possess the prescribed qualification may be appointed as a Notary. Provision for renewal of certificates of practice as Notary has been made under Section 5(2) of the said Act. Section 8 of the said Act prescribes the functions of the Notaries. Section 10 prescribes the provision for removal of names of the Notaries from the Register maintained for that purpose as prescribed under Section 4.
12. Section 10 of the said Act reads as follows:
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 an 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 practice 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.
13. The said Act has provided rule making power under Section 15 which includes the manner in which inquiries into the allegations of professional or other misconduct of Notaries may be made.
14. The Notaries Rules, 1956 were framed in exercise of the said power conferred by Section 15 of the Notaries Act, 1952 (hereinafter referred to as ‘the said Rule’) whereby the rules regarding qualification for appointment as a Notary, manner of application, consideration of the application for appointment of Notaries, extension of area of practice, fee for issuance and renewal of a certificate of practice, transaction of business by a Notary, enquiry into the allegations of professional or other misconduct of Notaries and submissions of return etc. have been provided.
15. In view of the rival contentions and submissions of the parties, the point which arises for consideration in the instant case is as to whether the enquiry into the allegations of the professional misconduct of the petitioner has been conducted in accordance with law. The answer to this point would decide the fate of this case.
16. Rule 13 of the said Rules provides for inquiry into the allegations of professional or other misconduct of a Notary which runs thus:
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 complainant for representation after compliance with 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 primarily 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 moto 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 in formed 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.
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 Gazette and shall also be communicated in writing to the notary concerned.
17. Rule 13 above referred is self contained and detailed provision for holding enquiry into the allegation of misconduct and taking punitive action against a Notary. The said Rule provides for adequate opportunity to the Notary to defend himself properly in the enquiry into the allegation of misconduct. Sub-rule 1 of Rule 13 envisages enquiry into the misconduct of a Notary initiated suo motu by the appropriate Government or on a complaint received in Form XIII. In the instant case, there was no complaint in Form XIII. In fact there was no complaint before inspection by the Secretary. Sub-rule 2 of the said Rules requires the following particulars in such complaint: (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. Sub-rule 3 mandates the appropriate Government to return a complaint which is not in the proper Form or which does not contain the aforesaid particulars to the complainant for representation after compliance with such objections. Sub-rule 4 provides for sending a copy thereof by the appropriate Government to the Notary at his address within 60 days ordinarily of the receipt of the complaint in proper Form.
18. Rule 4(A) deals with an enquiry initiated suo motu by the appropriate Government. In such enquiry, the appropriate Government has to 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.
19. Sub-rule 5 provides that on receipt of the charge a Notary may forward to appropriate Government a written statement in his defence verified in the same manner as a pleading in a Civil Court.
20. On perusal of the written statement and other relevant documents and papers, if the appropriate Government considers that there is a prima facie case against such Notary, it has to cause an enquiry to be made 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 is to be filed giving such information to the concerned Notary according to the provisions of Sub-rule 6 of Rule 13.
21. According to Sub-rule 8, it is 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 enquiry by the competent authority. Sub-rule 9 provides that 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.
22. The competent authority has been given power under Sub-rule 10 to regulate his procedure relating to the enquiry in such manner as he considers necessary and during the course of enquiry, he may also examine witnesses and receive any other oral or documentary evidence.
23. The competent authority thereafter has to submit his report to the Government entrusting him with the enquiry.
24. The appropriate Government would then consider the report of the competent authority as prescribed in Sub-rule 12(a) of Rule 13 and if in its opinion a further enquiry is necessary, it may cause such further enquiry to be made and further report submitted by the competent authority.
25. After considering the report of the competent authority, if the appropriate Government is of the opinion that action should be taken against the Notary, the appropriate Government may make an order cancelling the certificate of practice and perpetually debarring the Notary from practice or suspending him from practice for a specified period or letting him off with a warning, depending on the nature and gravity of the proved misconduct of the Notary.
26. After observing all the said detailed procedures, the notification has to be issued in Official Gazette, also communicating the same in writing to the Notary for removal of his name from the Register of Notaries from practice.
27. Competent authority is not defined either in the said Act or in the said Rules, but Rule 4 of the said Rules gives the hint about the competent authority which means such officer or authority of the appropriate Government as that Government may, by notification in the Official Gazette, designate in that behalf.
28. In the instant case, an enquiry had been initiated by Annexure-3 which is a letter dated 13.9.2006 issued by Sri Ramnarayan Prasad, Additional Secretary to the Government, Department of Law (Justice), Government of Jharkhand, Ranchi addressed to the petitioner. The consents of the said letter are as follows:
VIBHAGIYA SACHIV DWARA DINANK 26.6.2006 KO APKE KARYASTHAL PAR APKE DWARA SAMPADIT NOTARIAL KARYON KA NIRIKSHAN KIYA GAYA ZISME ANEK ANIYAMITTAYE PAI GAYI.
APKE DWARA BARTI GAYI ANIYAMITTAON SE SAMBANDHIT NIRIKSHAN PRATIVEDAN KI PRATI SANLAGN KARTE HUYE NIDESHANUSAR KAHNA HAI KI IN ANIYAMITTAON KE SAMBANDH ME APNA BINDUWAR SPASTIKARAN PATRA PRAPTI KE DO SAPTAH KE ANDAR PRASTUT KAREN.
NIRDHARIT AWADHI TAK APKE SPASTIKARAN NAHIN PRAPT HONE PAR YAH SAMJHA ZAYEGAE KI APKO ES SAMBANDH MEN KUCHH NAHIN KAHNA HAI, TATPASHCHAT APKE VIRUDH NIYA AWASHYAK KARRWAI KI ZAYEGI.
29. From perusal of the said letter, it is evident that the said enquiry was not initiated on any complaint received in Form-XIII, rather the same was initiated on detection of the alleged irregularities by the said Officer.
30. The enquiry, thus, can be said to be initiated suo motu by the appropriate Government under Sub-rule 4-A of Rule 13.
31. Rule 2(a) of the Notaries Rules, 1956 defines “appropriate Government”, which means the State Government, if a Notary is appointed by the State Government. Section 2(g) of the Notaries Act, 1952 defines the “State Government” only in relation to a Union territory which means the administrator thereof and there is no further definition of ‘State Government’.
32. Sub-section (60) of Section 3 of the General Clauses Act, 1897 defines the “State Government” as follows:
(60) “State Government”, –
(a) as respects anything done before the commencement of the Constitution, shall mean, in a Part A State, the Provincial Government of the corresponding Province, in a Part B State, the authority or person authorized at the relevant date to exercise executive government in the corresponding Acceding State, and in a Part C State, the Central Government;
(b) as respects anything done after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A State, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central Government;
(C) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union territory, the Central Government;
and shall, in relation to functions entrusted under Article 258A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under that Article;
33. In the instant case, the enquiry was initiated by letter dated 13.9.06 i.e. after the commencement of the Constitution (Seventh Amendment) Act, 1956 and as such according to the aforesaid definition in General Clauses Act, the State Government means the Governor. The initiation of proceeding against the petitioner i.e. Annexure-3 has neither been issued in the name of the Governor nor the same even mentions about any such direction. In view thereof, the initiation of enquiry contravened the mandatory provision of Sub-rule 4(A) of Rule 13 of the said Rules.
34. Further, the memo of allegations enclosed with the said initiation speaks about some irregularities but the allegations are not in the form of charge. Neither the particulars of the oral or documentary evidences relied on in support of the allegations were furnished to the petitioner.
35. After submission of the written statement by the competent authority and on perusal of the same by the appropriate Government, an enquiry has to be made by the appropriate Government, if a prima facie case is found against such Notary, as required by Sub-rule 6 of Rule 13. There is nothing on record to show that the Additional Secretary to the Government, Law (Justice) Department, Government of Jharkhand, Ranchi who issued the said letter dated 13.9.06, was the competent authority designated by the appropriate Government by any notification in the Official Gazette. Even in the counter affidavit, neither such averment has been made on behalf of the respondents, nor any document has been produced to show that the officer who dealt with the enquiry was the competent authority, appointed in accordance with the provision of Rule 4 of the Notaries Rules, 1956. The appropriate Government has to place all the facts brought to its knowledge which are relevant for the purpose of an enquiry before the competent authority as required b Sub-rule 8 of Rule, 13. There is compliance of the said provisions as well.
36. After complying with the said mandatory provisions, the competent authority has to submit his report to the Government entrusting him with the enquiry for the purpose of taking a decision in the manner as provided in Sub-rule 12(a)(b) of Rule 13 of the said Rules.
37. There is thus no material on record to support the contentions of the respondents that the proceeding was initiated against the petitioner in accordance with the provisions of the Notaries Act, 1952 and Notaries Rules, 1956 and that the charges against the petitioner were enquired into and established in an enquiry after following the described procedure which led to the impugned penal order removing the petitioner’s name from the Register and refusing request for renewal of the certificate of practice.
38. It has been contended on behalf of the respondents that the District Judge has power to inspect the notarial register under the provisions of Rule 11 of the Notaries Rules, 1956 and that the said action has been taken on the inspection report of the District Judge, Giridih. But the impugned order dated 13.9.06 initiating the proceeding against the petitioner does not substantiate the same. The said order clearly mentions that irregularities were found by the Departmental Secretary on his inspection of the petitioner’s notarial works on 26.6.06. Though one letter of the District Judge has been brought on record as Annexure-A which speaks about an inspection by the District Judge dated 4.8.06, the same is not the basis for initiation of enquiry against the petitioner.
39. In view of the discussion and for the reasons aforementioned, I find that the initiation of the proceeding dated 13.9.06 (Annexure-3) as well as the impugned order dated 16.4.07 (Annexure-5) do not stand to the test and requirement of the mandatory provisions of law and the same are vitiated and without jurisdiction.
40. In the result, this writ petition is allowed. The entire proceeding as well as the impugned order dated 16.4.07 (Annexure-3) are, accordingly, quashed.
41. However, there shall be no order as to costs.