9911796707
TMI Blog1968 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... Inder Prakash and Chandra Mohan and thus contravened Rule 11 of the Notaries Rules. 2. That none of these four affidavits were stamped with notarial stamp as required under Article 42 of the Stamp Act. 3. That none of these four affidavits was stamped with adhesive stamps in accordance with Sections 10 and 11 of the Stamp Act, though it was the duty of the Notary to see that the affidavits were duly stamped before he administered oath to the deponents, and got them verified. The petitioner was called upon to file a written statement which he did. A true copy of the written statement is Annexure 4 to the petition. After holding an enquiry on the basis of the above mentioned charges the Competent Authority submitted his report on 18th February, 1964 to the State Government saying that the charges levelled against the respondent (the petitioner) have been brought home to him. After receipt of the said report of the Competent Authority the State Government on 11th March 1964 issued a notification purporting to be under Section 10 of the Notaries Act, 1952 read with Clause (b) of Sub-rule (12) of Rule 13 of the Notaries Rules, 1956 cancelling with effect from the date of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, a copy of which was issued to the petitioner and which is Annexure 9 to the petition, by which the State Government purporting to act under Section 10 of the Notaries Act, 1952 read with clause (b) of Sub-rule (12) and Sub-rule (13) of Rule 13 of the Notaries Rules, 1956 cancelled with effect from the date of publication of the notification in the Gazette the certificate of practice granted to the petitioner and ordered the removal of his name from the register of Notaries with effect from the same date. It is against this order that the present petition is directed. 2. The petitioner challenges the validity of the impugned order on various grounds including that of mala fides. The prayer in the petition is that the notification (Annexure 9) be quashed and the State Government, namely, the opposite party, be directed not to give effect to the orders contained in the impugned notification. 3. The petition is opposed by the opposite party. A counter affidavit has been filed on behalf of the opposite party. 4. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the opposite party. The first and the foremost contention rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the record of which is the complaint filed by Sri Krishna Chandra which may be perused. It is unnecessary to peruse it because it is conceded that it does not contain any express allegation of professional misconduct. Thus, it is now conceded that the allegations in the complaint of Sri Krishna do not go beyond the charges framed by the Competent Authority. Such being the position I am of opinion that the stand taken by the petitioner as mentioned above is not without substance. In the special appeal reported in AIR 1967 All 173 it is observed in paragraph 27 of the report on page 180:-- We have seen the record of the case maintained in the U. P. Secretariat. It does not appear that the State Government ever addressed itself to the question as to whether or not on the facts proved in the case the petitioner-appellant could be adjudged guilty of professional misconduct as distinct from negligence or mere lapse and whether the professional misconduct, if any, was so gross 'as, in the opinion of the Government, renders him unfit to practise as a Notary'. It is thus abundantly clear that till before the disposal of the special appeal of the petitioner the authorities di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misconduct much less professional misconduct of such a nature as to render him unfit to practise as a Notary. In that view of the mutter the impugned order cannot possibly be sustained. 5. Another contention raised on behalf of the petitioner was that of the three charges, one relating to failure to affix adhesive stamp, as appears from the discussion in the body of the report of the Competent Authority, was found by the Competent Authority itself in favour of the petitioner and the other charge relating to the failure of the petitioner to have notarial stamp affixed, though found by the Competent Authority, against the petitioner, could not be sustained having regard to the provisions of the Notaries Act and Article 42 of the Stamp Act. Notwithstanding the observation in the course of discussion that it was not the duty of the petitioner to see that adhesive stamp was affixed to the affidavits, the Competent Authority at the end of the report vaguely stated that the charges leveled against the petitioner were proved. It has, however, been conceded before me by the learned Standing Counsel that the position stated by the Competent Authority in the course of the discussion in reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it remains a waste paper. So, in my view the language employed in Clause (e) of Section 8(1) of the Act clearly implies that an endorsement to that effect has got to be made. At any rate, since the administration of oath is a notarial act the statement of the fact that oath has been administered in the endorsement given on the affidavit subsequent to the administration of oath cannot but be taken to have been made in execution of the duties of the Notary, namely, to administer oath. I am thus unable to accept the contention that the view of the Competent Authority on the point is erroneous. 6. Another contention raised on behalf of the petitioner was that the finding of the Competent Authority regarding charge No. 1 was also erroneous in law. The argument is that when the Competent Authority found that Sub-rule (2) of Rule 11 of the Notaries Rules did not require entry of affidavits in the notarial register it chose to fall back on Sub-rule (9) of Rule 11 for recording a finding against the petitioner on charge No. 1 even though charge No. 1 never purported to be with reference to Rule 11 (9). On a perusal of Rule 11 (2) of the Notaries Rules I am satisfied that the contention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a register showing all the fees and charges realized by him. So, in any view of the matter it appears that the finding recorded by the Competent Authority is not in consonance with the charge. In other words, on a reading of the charge and the finding together it seems that the charge is different whereas the finding is with regard to another matter not incorporated in the charge. Hence, the contention of the petitioner that the finding recorded by the Competent Authority on charge No. 1 suffers from an apparent error of law appears to be correct. 7. Yet another contention raised on behalf of the petitioner was that the opposite party acted mala fide in issuing the impugned order. According to the petitioner proof of that assertion of his is furnished by what is alleged in paragraphs 15, 16 and 17 of the petition which allegations, it may be noted, are not controverted by the opposite party. The material facts which emerge from the aforesaid allegations are that the judgment of the special appeal was delivered on 6th September, 1966 whereafter the notification cancelling the earlier notification quashed by the said judgment was issued on 28th February, 1967 and the certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancellation of the certificate per se amounts to perpetual debarment from practice. Obviously, perpetual debarment from practice would disentitle the person so debarred from ever seeking to have his name restored on the register and to have a certificate issued to him for practising as a Notary. This is not necessarily the effect of a mere cancellation of the certificate which is a necessary consequence, as I view it, of the removal of one's name from the register. Where the name of a Notary is removed from the register and his certificate is cancelled he can at any time subsequent to that apply for the issue of a certificate and the same can be issued if the Government is satisfied that he is fit to be permitted to practise as a Notary. I accordingly repel the contention. 9. No other point was urged before me. 10. In view of the foregoing discussion it is clear that having regard to the language of the charges framed against the petitioner there was hardly any scope for the State Government to come to the conclusion that the petitioner has been guilty of professional misconduct much less that he has been guilty of such professional misconduct as renders him unfit to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
