Advocate appearing for the respondents fairly accepts that the
procedure in terms of Rule 13 of the Notaries Rules, 1956 has not been
followed, but, however, submits that the respondents are entitled to
justify the allegations against the petitioner in the proceedings initiated
by the respondent No.1 based on the inspections which have been
carried out.
6. We have considered the submissions of the learned
Counsel and we have also gone the through the record. Rule 13 of the
Notaries Rules, 1956 reads 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 time
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 ordinarily 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.
(4-a) Where an inquiry is initiated, suo motu 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 considers 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 informed 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
dispatch, 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”
On plain reading of the said Rule, we find that the procedure
contemplated therein has not been followed by the respondent No.1
whilst proceeding to pass the impugned order. The impugned order, as
such, stands vitiated for gross breach of the principles of natural
justice as, admittedly, no inquiry was conducted, nor any opportunity
given to the petitioner to present his case, in accordance with the Rules.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 1010/2015
Shri Gajanan Govind Dhumatker,
V/s.
State of Goa, by Chief Secretary,
CORAM :- F.M. REIS &
NUTAN D. SARDESSAI, JJ.
Date : - 05/04/2016.
Citation:2016(5) ALLMR346
2. Rule. Learned Government Advocate appearing for the
respondents waives service. Heard forthwith, with the consent of the
learned Counsel.
3. Upon hearing the learned Counsel appearing for the
respective parties, it appears that the main grievance of the petitioner
is that the impugned Order dated 22/08/2014, which is at Annexure A,
was passed by the respondent No.1 without following the principles of
natural justice, particularly Rule 13 of the Notaries Rules, 1956.
4. Mr. J.P. Mulgaonkar, learned Counsel appearing for the
petitioner points out that without issuing a show cause notice nor
giving a personal hearing to the petitioner in terms of the Rules, the
Respondent No.1 arbitrarily passed the impugned order. The learned
Counsel further points out that no inquiry was conducted by the
respondent No.1 in terms of sub-Rule (4A) of Rule 13 of the Notaries
Rules, 1956 whilst passing the impugned order. The learned Counsel
further points out that on this ground alone the impugned order stands
vitiated and deserves to be quashed and set aside. 3 WP1010-15
5. On the other hand, Mr. V. Rodrigues, learned Government
Advocate appearing for the respondents fairly accepts that the
procedure in terms of Rule 13 of the Notaries Rules, 1956 has not been
followed, but, however, submits that the respondents are entitled to
justify the allegations against the petitioner in the proceedings initiated
by the respondent No.1 based on the inspections which have been
carried out.
6. We have considered the submissions of the learned
Counsel and we have also gone the through the record. Rule 13 of the
Notaries Rules, 1956 reads 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 time
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 ordinarily 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.
(4-a) Where an inquiry is initiated, suo motu 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 considers 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 informed 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
dispatch, 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”
On plain reading of the said Rule, we find that the procedure
contemplated therein has not been followed by the respondent No.1
whilst proceeding to pass the impugned order. The impugned order, as
such, stands vitiated for gross breach of the principles of natural
justice as, admittedly, no inquiry was conducted, nor any opportunity
given to the petitioner to present his case, in accordance with the Rules.
7. Without going into the merits of the rival contentions, we
find that on this ground alone the impugned order stands vitiated and
deserves to be quashed and set aside.
8. In view of the above, we pass the following :
O R D E R
(I) The impugned order dated 22/08/2014 passed by the
respondent No.1 is quashed and set aside.
(II) Rule is made absolute in the above terms.
NUTAN D. SARDESSAI, J. F.M. REIS, J.
ssm.
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