Jammu & Kashmir High Court
Tilak Raj Sharma vs State And Ors. on 19 May, 2003
Equivalent citations: AIR2004J&K43, 2003(3)JKJ98, AIR 2004 JAMMU AND KASHMIR 43
JUDGMENT Muzaffar Jan, J.
1. Writ petition has been filed, praying for direction to quash the order suspending the Notary Licence of the petitioner during the pendency of enquiry, NO:LD (Notary) 87/2 dated 5.7.2002.
2. The main submissions made in the writ petition are that the petitioner is a political activist and a Public Notary, practicing in District Courts at Jammu since 1986. A false complaint was lodged by one Pritam Lal Gupta, on the ground that two affidavits attested by the petitioner, do not bear the registration number and signatures of the identifier. In pursuance of the complaint, a show cause notice was issued to the petitioner on 5.7.2002, requiring the petitioner to explain why action be not taken against him under Notary Act and rules and pending enquiry the licence of the petitioner was kept in suspension. It is this show cause notice which is submitted to have been issued on account of malafide, in an arbitrary and illegal manner, out of political vengeance, which is prayed to be quashed.
3. In their objections, the stand of the respondents is that on a complaint filed by one Pritam Lal Gupta, that two affidavits attested by the petitioner, do not bear the signatures of the identifier and registration number, which action constitutes professional misconduct under Section 10 of the Notaries Act and rules framed there under, in order to ascertain the facts, merely a show cause notice was issued requiring the petitioner to submit his explanation. As no final orders have been passed, therefore, the writ petition is not maintainable merely on the issuance of show cause notice. It is further submitted that, in order to scuttle the enquiry, petitioner has filed the present petition, challenging the issuance of show cause notice and has secured a stay order on 15.7.2002 and thereafter neither, has submitted his explanation nor, has associated with the enquiry, in order to ascertain the facts. The conduct of the petitioner, by staying away from the enquiry proceedings, has made it impossible for the respondents to proceed with the matter and settle the controversy under law and rules. It is vehemently denied that any action has been taken against the petitioner on political basis. On these submissions, it is prayed that the writ petition, which is not maintainable, be dismissed.
4. Heard learned counsel for the parties at length.
The facts which are not denied but are admitted are that the petitioner was granted permission to act a Notary within the limits of Courts in Jammu City. It is also not denied but is admitted that petitioner was practicing as a Notary Public at District Courts in Jammu. The controversy appears to have started when the complaint of misconduct was filed by one Pritam Lal Gupta against the petitioner and on the basis of the complaint, show cause notice dated 5.7,2002 was issued against the petitioner. From perusal of the show cause notice it is manifestly clear that the petitioner has been required to show cause as to why action be not taken against the petitioner on the complaint for attesting the affidavits, which do not bear the signatures of the identifier. Learned counsel for the respondents has placed reliance on the judgment of the Apex Court, reported as AIR 1996 SC 1894, and submitted that the attestation of affidavits, without proper identification, has been held by the Apex Court to be a misconduct and on this ground the petitioner was required to explain his conduct and accordingly the notice is valid. This argument has substance in view of the settled position of law. The Apex Court has observed as under:-
"............This is third case where the Court has come cross that the Notaries have been misusing the liberty give to them by issuing such false attestations and indiscriminately attesting the affidavits to be filled by some party who have not been properly identified.
........None identified her before the Notary, yet he attested the affidavit. This would show that some Notaries are absolutely misusing the licence granted to them without and proper verification of the persons who has signed the document and are attesting false affidavits of impersonators."
.........Registry is directed to issue a notice to the Notary to show cause as to Sudersham Kumar why he should not be prosecuted and punished for attesting false affidavit of impersonators and why his licence should not be cancelled and he should not be prosecuted for giving such false certificates."
5. Therefore, it cannot be prima facie said that on the complaint filed by Pritam Lal Gupta, issuance of show cause notice is not justified.
6. Learned counsel for the petitioner has vehemently submitted that suspension of the licence, during the period of enquiry, is not permissible under the Act, as it is not covered by any provisions of the Notaries Act, and accordingly the direction to the extent of suspension of the licence, may be quashed.
7. The argument of learned counsel for the petitioner, though attractive, cannot be accepted for multiple reasons. On perusal of Section 13(10) of the Notaries Act, it is plainly clear that an authority conducting the enquiry has the power to regulate his own procedure, relating to the enquiry in such a manner as he considers necessary. Relevant portion of the section is reproduced as under:
"(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."
8. It is a settled position of law that, authority which is competent and empowered to ultimately suspend or cancel a licence, has inherent powers to suspend the licence during the course of enquiry. Even under the general clauses Act, the authority competent to grant the licence is authorized to suspend the same temporarily. It is not the case of the petitioner that the Secretary to Government Law Department is not the competent authority, On the other hand, it is the submission of the respondents that having got the order of stay of temporary suspension of the licence, the petitioner has completely disassociated himself with the enquiry proceedings due to which no proceedings could be conducted during the past nearly eight months.
9. Having considered the facts and circumstances and legal aspect involved in the controversy, it can safely be held that, as the Competent Authority, under the Act has powers to regulate the procedure relating to the enquiry and the direction to temporarily suspend the licence can be ordered during the course of enquiry, the action of the competent authority does not suffer from any legal flow.
10. It may be kept on record that petitioner has alleged malafides, without identifying the persons against whom malafides are attributed or the nature of malafide to make out a case for interference in the present petition.
11. In view of the reasons given above, the writ petition has no merit and is accordingly dismissed. The interim directions are also vacated.