Madras High Court
V.M. Chandrasekaran vs State Of Tamil Nadu Represented By Its ... on 28 February, 2002
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner is a practising Advocate in the City of Madras for more than 20 years. He was appointed as notary in G.O.Ms.No.261 Law Department dated 1.7.91. On 2.1.96 at the request of Thiru S.A.Rajan, another practising Advocate in the City of Madras having his chamber at No.165, Law Chambers, High Court, Madras, the petitioner attested an affidavit sworn by one Thiru V.Krishnan. In order to introduce the said V.Krishnan, Thiru S.A.Rajan, Advocate gave a letter identifying the deponent of the affidavit so as to enable the petitioner to attest the said document. Subsequent to the same, it appears that one Thiru A.Venkatesan lodged a complaint on 5.6.96 before the Government of Tamil Nadu, Law Department, Madras against the petitioner alleging that the petitioner had attested a fabricated document namely the affidavit which the petitioner attested on 2.1.96. In the complaint it was alleged that the affidavit was signed on 13.12.95 but the stamp paper was purchased on 19.12.95 and the same was attested on 2.1.96. The said complaint was forwarded by the Government to the Principal Judge, City Civil Court, Chennai who is the competent authority to conduct an enquiry under Rule 13 of Notaries Rules, 1956. The competent authority after conducting an enquiry ultimately found that there was no misconduct on the part of the petitioner in attesting the said affidavit but, there was a negligence on the part of the petitioner in not verifying the date of the document and the date on which it was signed by the deponent, and also there was no identification to the document. On such finding, a report was submitted by the competent authority to the Government. On considering the said report, the Government also accepted that there was no misconduct on the part of the petitioner in attesting the document on 2.1.96 as alleged by the complainant, but the Government found negligence on the part of the petitioner in so far as the petitioner did not verify the date of the stamp paper and the date on which the affidavit was signed to by the deponent as well as the document was not identified by any Advocate. Hence, by exercising the power under Rule 13(12)(b)(i) of the Notaries Rules, 1956 (hereinafter referred to as "the Rules") the Government passed orders for cancellation of the certificate of practice and perpetually debarred the petitioner as notary. By the same order, by exercising the power under Section 10(d) of the Notaries Act, 1952 (hereinafter referred to as "the Act"), the Government also directed the removal of the name of the petitioner from the register of Notaries. The said order of the Government made in G.O.Ms.No.510 Law Department dated 9.10.97 is under challenge in this writ petition.
2. Mr.M.Venkatachalapathy, learned senior counsel appearing for the petitioner would challenge the said order on the following grounds:-
(1)The Central Government by virtue of the powers conferred under Section 15 of "the Act" is empowered to frame rules. Under Section 10(d) of "the Act", the appropriate Government is empowered to remove the name of a notary from the register in the event of any professional or other misconduct which renders an Advocate unfit to practice as a notary. However, as per Rule 13(12)(b)(i) of "the Rules", the Government is empowered not only for cancelling the certificate of practice but also perpetually debarring the notary from practice. By the said rule, the Government has been given power than the one provided under Section 10(d) of "the Act".
(2)The learned senior counsel would further contend that the said rule came up for consideration before a Division Bench of Allahabad High Court in "SRI KASHI PRASAD SAKSENA v. STATE OF UTTAR PRADESH " and the same had been struck down. Therefore, the order of the respondent placing reliance on the said rule is unsustainable.
(3)In any event, the petitioner was not given an opportunity by the Government before the impugned order was passed.
(4)Finally, the learned senior counsel submitted that even on merits, when once the competent authority namely the Principal Judge, City Civil Court, Madras had come to the conclusion that the complaint against the petitioner for misconduct was not proved, the impugned order perpetually debarring the petitioner from practice and also removing the name from the register of notaries is unsustainable.
3. Heard the learned Government Advocate for the respondent.
4. The Notaries Act, 1952 (Act No.53 of 1952) was enacted to regulate the profession of notaries whose names are entered in the register under Section 5 of "the Act". Following are some of the relevant provisions which are relevant for disposal of the writ petition and the same are as under:-
Section 4: Registers (1)The Central Government and every State Government shall maintain, in such form as may be prescribed, a register of notaries appointed by that Government and entitled to practise as such under this Act.
(2)Every such register shall include the following particulars about the notary whose name is entered therein, namely:-
(a) his full name, date of birth, residential and professional address;
(b) the date on which his name is entered in the register;
(c) his qualifications; and
(d) any other particulars which may be prescribed.
Section 5: Entry of names in the register and issue or renewal of certificates of practice (1)Every notary who intends to practise as such may, on payment to the Government appointing him of the prescribed fee, if any, be entitled-
(a) to have his name entered in the register maintained by that Government under section 4; and
(b) to a certificate authorizing him to practise for a period of five years from the date on which the certificate is issued to him.
(2)The Government appointing the notary, may, on receipt of an application and the prescribed fee, renew the certificate of practice of any notary for a period of five years at a time.
Section 9: Bar of practice without certificate (1)Subject to the provisions of this section, no person shall practise as a notary or do any notarial act under the official seal of a notary unless he holds a certificate of practice in force issued to him under section 5:
PROVIDED that nothing in this sub-section shall apply to the presentation of any promissory note, hundi or bill of exchange for acceptance of payment by the clerk of a notary acting on behalf of such notary.
(2)Nothing contained in sub-section (1) shall, until the expiry of two years from the commencement of this Act, apply to any such person as is referred to in proviso to clause (d) of section 2:
PROVIDED that in relation to the State of Jammu and Kashmir the said period of two years shall be computed from the date on which this Act comes into force in the State. Section 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 undischarged 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 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.
Section 15. Power to make rules (1)The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2)In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely,--
(a) the qualifications of a notary, the form and manner in which applications for appointment as a notary may be made and the disposal of such applications;
(b) the certificates, testimonials or proofs as to character, integrity, ability and competence which any person applying for appointment as a notary may be required to furnish;
(c) the fees payable for appointment as a notary and for the issue and renewal of a certificate of practice, area of practice or enlargement of area of practice and exemption whether wholly or in part, from such fees in specified classes of cases;
(d) the fees payable to a notary for doing any notarial act;
(e) the form of registers and the particulars to be entered therein;
(f) the form and design of the seal of a notary;
(g) the manner in which inquiries into allegations of professional or other misconduct of notaries may be made;
(h) the acts which a notary may do in addition to those specified in section 8 and the manner in which a notary may perform his functions;
(i)any other matter which has to be, or may be, prescribed.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Rule 13: Inquiry into the allegations of professional or other misconduct of a notary (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.
5. Under Section 4 of "the Act", the Central Government or State Government shall maintain a register of notaries appointed by the respective Governments. Under Section 5 of "the Act", entry of names in the registers are made as well as for issue or renewal of certificates of practice also. A certificate authorising an Advocate to practice as notary is issued for a period of five years subject to renewal. Without such certificate, an Advocate is not entitled to practice as a notary by virtue of the provisions of Section 9 of "the Act". Under section 10 of "the Act", the Government may by order remove the name of any notary from the register maintained by it under section 4 after the notary is 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 a notary. Under Section 15 of "the Act", the Central Government is empowered to frame rules on various matters. By virtue of the said power, Notaries Rules, 1956 have been framed and under Rule 13(12)(b)(i), the appropriate Government has been vested with the power of cancelling the certificate of practice and perpetually debarring the notary from practice. It is well settled in law that the Rules cannot overwrite the powers given under the Act. Under Section 10(d) of "the Act", the appropriate Government is only entitled to remove the name of a notary from the register maintained by it for proved professional or other misconduct. The registration of the name of a notary initially is for a period of five years thereby indicating that the same is subject to renewal. A combined reading of Section 10 and Section 5 of "the Act" would reveal that even when the removal of name of a notary from the register is ordered under section 10(d), there is no prohibition or bar for the notary to again seek for a fresh registration under section 5 of "the Act". However, under Rule 13(12)(b)(i) of "the Rules" an wide power is given to the appropriate Government even for cancelling the certificate of practice and also perpetually debarring the notary from practice. In the event of the Government exercising such power, the Government is empowered to debar a notary from its roll permanently without giving any further room for the notary to again approach the Government for fresh registration. Such an extreme punishment provided under Rule 13(12)(b)(i) of "the Rules" is not contemplated under Section 10(d) of "the Act" and such a punishment would fall outside the scope of the said section. Therefore, the rule framed by the Government conferring much more power on the Government than the one prescribed under "the Act" cannot be sustained. The validity of the said Rule came up for consideration before a Division Bench of the Allahabad High Court in Sri Kashi Prasad Saksena's case cited supra and the Division Bench has struck down the said Rule. In such circumstances, the reliance placed by the respondent on the said rule 13(12)(b)(i) to pass the impugned order is unsustainable as the State Government cannot be vested with such a power.
6. Coming to the exercise of power under Section 10(d) of "the Act" for removing the name of the petitioner from the register maintained by the Government under section 5 of "the Act", it is to be seen that when a complaint was received by the Government, the same was forwarded to the competent authority viz., the Principal Judge, City Civil Court, Madras for enquiry. The Principal Judge after enquiry gave a categorical finding that there was no misconduct on the part of the petitioner as alleged in the complaint. However, the Principal Judge found negligence on the part of the petitioner in not verifying the discrepancy in the date in the stamp paper and the date when the affidavit was signed by the deponent. The said finding was accepted by the Government in its entirety. What is contemplated under Section 10(d) of "the Act" empowering the Government is to pass an order removing the name of the notary from the register for proved professional or other misconduct. The said provision does not empower the Government to impose the penalty on the ground of negligence on the part of the notary. The words "professional or other misconduct" cannot bring in its ambit the word "negligence". Unless the respondent comes to the conclusion that the petitioner has rendered himself unfit to practice as notary on proved professional or other misconduct, the power under Section 10(d) of "the Act" to remove the name of a notary from the register cannot be exercised by the Government only on the ground of negligence. It is not in dispute that the order removing the name of the petitioner from the register maintained by the Government was made only on the ground of negligence which in my considered view is again exceeding the power conferred on the respondent under Section 10(d) of "the Act". It is also to be seen that even though the report was called for by the Government from the competent authority, the said report was not communicated to the petitioner before the impugned order was passed. It is not the case of the respondent that proved negligence would also amount to misconduct. On the basis of negligence which was not pleaded by the respondent viz., the petitioner has been imposed with the penalty of perpetual debarment from practising as notary and removal of his name from the register maintained by the Government. When such a punishment is imposed on the petitioner, in my view, the respondent ought to have given notice to the petitioner along with the copy of the report by the competent authority and should have passed orders only after getting an explanation from the petitioner. Non compliance of the above would also render the order liable to be set aside on the ground of violation of the principles of natural justice.
7. Coming to the merits of the case, admittedly, neither the competent authority nor the Government found the petitioner guilty of misconduct as alleged by Thiru A.Venkatesan in the complaint. All that has been found against the petitioner was that he was negligent in not verifying the discrepancy in dates namely the date of the stamp paper and the date when the deponent signed the affidavit. Therefore, the question of misconduct alleged on the part of the petitioner by the complainant is also not substantiated as could be seen from the report of the competent authority and the very impugned order of the Government. Hence, for all the above conclusions arrived by me, the penalty imposed on the petitioner only on the ground of mere negligence which has not been pleaded by the respondent as amounting to professional or other misconduct cannot be sustained.
8. For the above reasons, I am unable to sustain the impugned order. Hence, the impugned order imposing penalty of cancelling the certificate of practice and perpetually debaring the petitioner to practice as notary by exercising the power under Rule 13(12)(b)(i) of "the Rules" and consequently removing the name of the petitioner from the register of notaries by exercising the power under Section 10(d) of "the Act" is unsustainable. Accordingly, the impugned order is set aside and the writ petition is allowed.