Bombay High Court
Ashok Sonyabapu Shirsath vs The Union Of India And Another on 27 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 1121
Author: R.G. Avachat
Bench: R.G. Avachat
Writ Petition No.7485/2018
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.7485 OF 2018
Ashok s/o Sonyabapu Shirsath,
Age 60 years, Occu. Advocate/ Notary
R/o Mahatma Phule Nagar,
National Highway No.6,
Behind Rajesthan Marble,
Bhusawal, Taluka Bhusawal
District Jalgaon ... PETITIONER
VERSUS
1. The Union of India,
through its Secretary/
Competent Authority (Notary),
Ministry of Law & Justice,
Department of Legal Afairs,
(Notary Cell), Govt. of India,
R.No.439A, Shastri Bhavan,
New Delhi - 110 001
2. The Deputy Legal Adviser & C.A.
Government of India,
Ministry of Law & justice,
Department of Legal Afairs,
(Notary Cell), Govt. of India,
R.No.439A, Shastri Bhavan,
New Delhi - 110 001
(Copies to be served on the Standing
Counsel of Union of India, High Court
of Bombay, Bench at Aurangabad)
... RESPONDENTS
.....
Shri S.D. Kotkar, Advocate for petitioner
Shri D.G. Nagode, Standing Counsel for respondents
.....
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Writ Petition No.7485/2018
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CORAM: R.G. AVACHAT, J.
Date of reserving judgment : 7th October, 2019
Date of pronouncing judgment : 27th January, 2020
JUDGMENT:
Rule. Rule made returnable forthwith and heard finally with the consent of learned counsel appearing for the parties.
2. By this Writ Petition filed under Article 226 of the Constitution of India, the petitioner seeks following reliefs :-
(B) The impugned order dated 8/6/2018 (Exhibit G), passed by the respondent No.2, thereby declaring the petitioner unft to continue as a Notary and cancelling the certifcate of practice as Notary under Rule 13(12)(b)(i) of the Notaries Rules, 1956 so also the action of removing the name of petitioner from the Register of Notaries, may kindly be quashed and set aside.
(C) The respondent authorities may kindly be directed to renew the Certifcate of practice as a Notary within a stipulated period.
3. The petitioner is an Advocate by profession. He has been appointed as a Notary for the District of Jalgaon for a ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 3 )) period of five years from the date of issuance of Certificate, dated 21/10/2011. The period of Certificate was to expire on 20/10/2016. The petitioner filed an application for renewal of his Certificate authorising him to act as a Notary.
4. The petitioner received a notice dated 29/8/2016, issued by the respondent No.2, calling upon him to file his explanation about the complaint dated 2/11/2015, lodged by one Nilesh Digambar Sonar, resident of Bhusawal. The gist of the allegations in the complaint was - the petitioner notarised an afdavit, unsigned by an afant, Smt. Ranjana Bhivaji Bavaskar. The said afdavit was submitted along with her nomination paper as a candidate for an election as a Councilor of Municipal Council, Varangaon. Since it was an unsigned afdavit, her nomination paper came to be rejected. She, therefore, preferred an appeal to the Court of Additional District Judge, Bhusawal. The learned Judge, while deciding the appeal, made following observations :-
"In the present case, it is pertinent to note that annexed afdavits are notarized by concerned notary without obtaining the signature of appellant candidate on point of correctness and genuineness of its contents. In fact, concerned Notary has committed gross negligence while notarizing said afdavit of the appellant, Ranjana ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 4 )) Bavaskar. Moreover, said afdavit is enclosed with the election form as if they are genuine afdavits. Said illegality while submitting election form committed by the concerned candidate and the said Notary cannot be lebelled as minor discrepancy liable to be rectifed during scrutiny. Therefore, the Returning Ofcer cannot be held responsible for not allowing the rectifcation in the said form."i
5. A copy of the complaint was given to the petitioner along with a notice, calling upon his explanation. In response thereto, the petitioner gave his explanation, stating therein that Mrs. Ranjana Bavaskar, whose nomination form came to be rejected, has no grievance against him. The petitioner filed her afdavit to that efect. Moreover, the complaint was pseudonymous. The person by name Nilesh Digambar Sonar was not residing on the address given in the complaint. He too filed an afdavit, disowning to have filed any such complaint. The respondent authorities still passed the impugned order.
6. Heard Shri Kotkar, learned counsel appearing for the petitioner. He would submit that, the documents produced and case laws relied upon have not been considered by respondent No.2. The complainant did not appear nor has ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 5 )) he filed any afdavit. It turned out to be a case of pseudonymous complaint. Smt. Ranjana Bavaskar, who was an aggrieved party, has not made any complaint. She has even filed an afdavit, stating to have no grievance against the petitioner.
7. It was further submitted by the learned counsel that the complaint was not in a prescribed format. It, therefore, ought to have been rejected in limine. It was a mistake on the part of the petitioner to verify whether the afant had signed her afdavit. The petitioner has, in fact, administered oath to her. It was just an omission occurred pursuant to an oversight. The alleged misconduct is not of such a nature as to render the petitioner unfit to practice as a Notary. The term 'misconduct' implies an intentional or a mischievous act in order to proceed under Section 10 of the Notaries Act, 1958 (for short the Act) and/or under Rule 13 of the Rules framed under the Act, there must be specific allegation and the allegation must be proved. The petitioner was not found to be guilty of misconduct. He was found to have been negligent in obtaining a signature on the afdavit. A penalty in the nature of removing the petitioner's name from the roll/ register of Notaries is grossly disproportionate to the alleged misconduct, nay mistake. The learned counsel, therefore, urged for allowing the petition. ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018
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8. The respondent No.2 has filed afdavit-in-reply for and on behalf of respondents No.1 and 2. It is stated in the afdavit that the learned Additional District Judge, Bhusawal has made some observations in his judgment passed in Election Petition No.1/2015. The explanation was called for from the petitioner. He had been given an opportunity of hearing. The functions and transactions of business of a Notary cannot be done in routine manner and without application of mind. Sanctity is attached to the certificate of the Notary. It is axiomatic from the afdavit itself that this was an act of gross negligence, nothing short of a misconduct on the part of the petitioner. The respondent had, therefore, no option but to pass the impugned order.
9. Before appreciating the issues involved in the petition, it is necessary to refer to the relevant provisions of the Act and the Rules thereunder. Section 10 of the Notaries Act, 1952 reads as under :
"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) ............ ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 7 )) (b) ............ (c) ............ (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 unft to practise as a notary; or
(e) ............
(f) .............
Rule 13 of the Notaries Rules, 1956 reads as under :
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 unft 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 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 8 )) 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 fle 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.
(4A) 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 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 9 )) Government, forward to that Government a written statement in his defence verifed 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 fled] 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 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 ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 10 )) 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 certifcate of practice and perpetually debarring the notary from practice; or
ii) suspending him from practice for a specifed period; or ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 11 ))
iii) letting him of with a warning, according to the nature and gravity of the misconduct of the notary proved.
(13) Notifcation of removal :- The removal of the name of any notary from the Register of Notaries from practice, as the case may be, shall be notifed in Oficial Gazette and shall also be communicated in writing to the notary concerned."
10. As can be seen from Rule 13(1), an inquiry into the misconduct of the Notary may be initiated suo motu by the appropriate Government or on a complaint received in Form XIII. True, the rule requires that the complaint has to be in prescribed form. I, however, do not propose to give much importance to the form of a complaint than substance in the allegations made in the complaint. True, the complaint was found to be pseudonymous. A person by name Nilesh Digambar Sonar allegedly made a complaint. On his address given in the complaint, no person by this name was found. One Nilesh Digambar Saraf was found to have been residing on the given address. It appears that, he was at logger heads with the petitioner. The record indicates the petitioner to have filed a complaint, alleging him to have committed ofences punishable under Sections 323, 325, 504, 506 read with Section 34 of the Indian penal Code so also under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 12 )) (Prevention of Atrocities) Act, 1989. This fellow has even filed (sent by post) an afdavit before the competent authority, stating therein to have not made any complaint against the petitioner.
11. Smt. Ranjana Bavaskar, the afant also filed an afdavit, stating therein to have no grievance against the petitioner. It appears that, the afdavits of both these persons were obtained by the petitioner. Be that as it may, the fact remains that, admittedly the petitioner has attested/ notarised the afdavit of Smt. Ranjana Bavaskar without there being her signature thereon. The said afdavit was filed along with her nomination paper for election of a Councelor for the Municipal Council. Her nomination paper came to be rejected on the ground of having been supported/ accompanied by unsigned afdavit. She had, therefore, preferred an Election Appeal against the order rejecting her nomination form. She has, however, been unsuccessful therein. The judgment passed in Election Appeal does indicate that her nomination papers were rejected only on the ground of having submitted an unsigned afdavit.
12. As seen above, in view of Section 10 of the Notaries Act, if in the opinion of the Government a Notary is found to be guilty of such professional or other misconduct, as in its opinion, renders him unfit to practice as a Notary, the Government ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 13 )) appointing him as a Notary, may remove from the register maintained by it under Section 4, the name of such a Notary. The order impugned in this Writ petition reads :-
"Whereas, the appropriate Government has considered the entire facts and circumstances and the material made available on record and is not satisfed with the explanation given by you. Since you have admitted your mistake that an unsigned afdavit has been attested by you. You have not discharged your duties as notary strictly as per the provisions of the Notaries Act and Rules framed thereunder and the same amounts to professional misconduct. You have also performed notarial functions in a routine manner and without application of mind, as such the appropriate Government has found you unft to continue as a Notary and as such your Certifcate of practice as Notary stands cancelled under Rule 13(12)(b)(i) of the Notaries Rules, 1956. Accordingly, your name is being removed from the Register of Notaries."i
13. Rejection of the nomination papers is a serious consequence, resulted due to conduct of the petitioner. In his explanation dated 15/2/2018, the petitioner submitted that there was a long queue of persons for swearing in afdavits. It was his inadvertent act/ mistake. He had, however, administered the ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 14 )) afant oath of afrmation. It appears that, this defence is afterthought because the same was not his contention in his explanation dated 9/9/2016. The record indicates neither afant nor the complainant had been issued notice for recording their statements in the enquiry against the petitioner. The petitioner submitted statement, supported by an afdavit of the afant, stating therein to have no grievance against the petitioner. This fact suggests the petitioner to have obtained her statement in his support. Same is the case of Shri Nilesh sonar.
14. The word 'misconduct' is not defined in the Notaries Act. It is a relative term and it has to be considered with reference to the subject matter and the context wherein it occurs. It literally means wrong conduct or improper conduct [AIR 2001 SC 2028 - N.G. Dastane Vs. Shrikant S. Shivde & anr. ].
15. The expression misconduct means, wrong or improper conduct, unlawful behaviour, mis-feasance. It inter-alia envisages breach of discipline. It is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It is a violation of definite law [ (2004) 5 SCC 689 - Noratamal Chouraria Vs. M.R. Murli & anr. ].
16. The petitioner placed reliance on the following two ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 15 )) authorities :-
(1) V.M. Chandrasekaran Vs. State of Tamil Nadu (MANU/TN/0726/2002) (2) Mohandas Vs. State of Kerala.
(MANU/KE/0303/2001)
17. The facts of both the aforesaid cases are quite diferent. In first one, the competent authority, after conducting an enquiry, ultimately found that it was no misconduct on the part of the petitioner in attesting the afdavit, but there was a negligence on his part in not verifying the date of the document and the date on which it was signed by the deponent, and there was no identification to the documents. The Government had also accepted that there was no misconduct on the part of the petitioner in attesting the documents.
18. While the facts of the second case indicate that signature of the executant put in the register form was patently diferent from the signature obtained in the receipt book. The main charge levelled against the petitioner was that he had allowed diferent person to sign in the register and the receipts for the same notarial action. The Court observed that, obtaining a signature in the receipt book was not mandatory under the Act or the Rules thereunder. It was a case of an afant - a lady in a very advanced stage of pregnancy. After signing the afdavits and in the register, she went down the stairs of the petitioner's ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 16 )) ofce. The person accompanying the lady was waiting for the receipt. Since the lady was in an exhausted condition, instead of asking her to climb the staircase once again, the petitioner obtained the signature of the person accompanying her, in the receipt book.
19. In the case of Hameed Joharan and ors. Vs. Abdul Salam (AIR 2001 SC 3404), the Hon'ble Supreme Court, in paragraph no.26, held thus :
"26. As a matter of fact, a three Judge Bench of this Court in the case of Municipal Committee, Amritsar Vs. Hazara Singh, [1975] 3 SCR 914, has been pleased to record that on facts, no two cases could be similar and the decision of the Court which was essentially on question of facts could not be relied upon as precedent, for decision of the other cases. . . . . ."
20. On due enquiry, the respondent No.1 found it to be a case of 'other misconduct' as sufcient to render the petitioner unfit to practice as a Notary. From the facts obtainable in the case, I have no reason to difer with the reasons assigned for removal of the petitioner's name from the register of the Notary. The inaction on the part of the petitioner to verify whether the afant had really put her signature on the afdavit amounts to grave negligence on his part. The same is nothing short of 'other ::: Uploaded on - 29/01/2020 ::: Downloaded on - 29/01/2020 23:23:16 ::: Writ Petition No.7485/2018 (( 17 )) misconduct', sufcient to pass the impugned order. I, therefore, do not find any reason to take a diferent view. The Writ Petition is, therefore, liable to be dismissed.
21. In the result, the Writ Petition is dismissed. Rule discharged.
(R.G. AVACHAT, J.) fmp/-
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