Punjab-Haryana High Court
Mahabir Parshad Goyal Advocate vs The Commissioner And Secretary To ... on 13 September, 1991
JUDGMENT Jawahar Lal Gupta, J.
1. The petitioner, An Advocate, is aggrieved by the action of the State of Haryana in not renewing his licence and in ordering the removal of his name from the Register of 'Notary Public' of Sirsa district (Annexure P-8). A few facts may be noticed.
2. The petitioner's, name brought on the Register of Notaries maintained under Section 5 of the Notaries Act, 1952 (hereinafter refered to as the Act). In the year 1985, a certificate of practice issued to the petitioner was renewed for a term of 3 years which was to expire on January 12, 1988. The petitioner avers that he suffered an injury in the right eye. He had to undergo surgery for an intra ocular lense transplantation. He was admitted to the hospital at Amritsar for about 15 days. Thereafter he was under treatment at Dr. Sangwan's Clinic at Sirsa. On account of the indisposition, the petitioner claims that delay occurred in the deposit of the requisite fee of Rs. 25/- for the renewal on his licence to practice. The deposit which should have been made on or before January 12, 1988 was in fact made on May 25, 1988. Inspite of the fact that the petitioner had submitted the requisite medical certificate, the Government vide its order dated June 19, 1989 decided to remove the name from the Register of Notaries Public of Sirsa district (Annexure P-8). Thereafter, vide letter dated July 17, 1989, the Deputy Commissioner, Sirsa requested the Government to issue a notification under the Notary Rules of 1956 removing the name of the petitioner from the Registrar of Notaries. It appears before the issue of the notification, the petitioner filed the present petition in this Court on August 22, 1989. The Motion Bench while admitting the petition passed an order of ad-interim stay. The interim order of stay was confirmed by the learned Single Judge on February 7, 1990. As a result, the petitioner appears to have continued to practice as Notary.
3. In the written statement filed on behalf of the respondents it has been pleaded that the petitioner has failed to deposit the requisite fee in time for the renewal of his certificate and as such he cannot be allowed the benefit of his own wrong. It is maintained that the petitioner was under a mandatory legal obligation to apply for the renewal of the certificate before its date of expiry and his failure to do so estops him from challenging the impugned order. It has also been maintained that the petitioner was not entitled to practice after the expiry of his term and that his action in doing so renders him liable to action/prosecution under the Act and the Rules It is also maintained that no show cause notice or opportunity is required to be given before refusing to renew the licence.
4. I have heard Mr. T. S. Doabia, learned counsel for the petitioner. No one has appeared on behalf of the respondents. Mr. Doabia has contended that the petitioner was unable to deposit the requisite fee for Rs. 25/- on account of a sufficient cause and that the deposit had in fact been made before the petitioner's name was actually removed under Section 10 vide orders at Annexure P-8. Further more, he contends that principles of natural justice demand that an opportunity be given to a person before his name is actually removed from the Register of Notaries.
5. At the outset, a few provisions of the Act deserve to be noticed. Sections 5 and 10 of the Act read as under :--
"5 Entry of names in the Register and issue or renewal of certificates of practice.--
(1) Every notary who intends to practice as such shall, 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 three years from the date on which the certificate is issued to him.
(2) Every such notary who wishes to continue to practise after the expiry of the period for which his certificate of practise has been issued under this section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate of practise renewed for three years at a time.
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 an 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 notry."
A persual of Section 5 shows that every notary is entitled to have his name entered in the Register on payment of a prescribed fee. Further, every notary has a right to have a certificate to practise renewed for three years on payment of the prescribed fee. By virtue of Section 10, the Government is competent to order the removal of the name from the Register if the notary "has not paid any prescribed fee required to be paid by him". Neither Section 10 nor Section 5 prescribed or fix a date on or before which the amount has to be deposited. Though, in the normal course of events, to deposit should be made on or before the date on which a term of 3 years expires. However, the provisions of Sections 5 and 10 in their present form, cannot in my opinion, be interpreted to mean that a delay however short and bonafide would automatically result in the removal of the name from the register. A perusal of Section 10 shows that the Government can "by order, remove from the Register -- --" the name of a person if he has not paid any prescribed fee. Thus, the removal is not automatic. It has to be by an order. Under the provisions of the rules, the order has even to be notified. Since the removal of the name is not automatic, it becomes incumbent on the authorities concerned to consider the cause for the delay in making a deposit. It is not impossible to imagine a situation where a person wanting to make the deposit is unable to do so on account of reasons entirely beyond his control. It is possible that a particular town may be under curfew for a number of days. It is not unimagineable that the law and order situation may prevent a person from going out of his house. In a given case, the physical condition of the person may prevent him from making the deposit in time. In such a situation, a great hardship will occur to the individual concerned as also to the public at large if it were held that the name stands automatically removed or that every delay shall result in removal of name. Such does not appear to be the intention of the statute. Consequently, it is held that delay in making the deposit does not automatically result in the deletion of the name of the notary from the register maintained under Section 4.
6. It is equally clear that after a person's failure to make the deposit, the Government has to consider the matter and pass an order. Is this order under Section 10 to be passed mechanically or is the authority required to consider various relevant facts ? The very fact that the Parliament has imposed a duty on the Government to pass an order shows that the name has not to be deleted automatically but the facts have to be considered and then an order has to be passed. There can be no proper consideration of facts unless the person concerned is given some opportunity to explain his position. This 'opportunity' may not necessarily involve a lengthy enquiry in every case. Still, an opportunity to put forth the view point must be given to the concerned. The plea taken on behalf of the respondents, namely, that the deposit has to be made before the expiry of the term and that no opportunity is required to be given does not appear to be correct. Such an interpretation would lead to very arbitrary and anamolous results.
7. The admitted Position in the present case is that the petitioner had suffered an injury in his right eye. He appears to have been examined in the hospital at Amritsar on January 2, 1988. This was well before the date on which the petitioner's term was to expire viz. January 12, 1988. Thereafter, the petitioner had undergone surgery, and remained under treatment for a sufficiently long time. In such a situation, the petitioner cannot be accused of negligence or carelessness. His plea that there was a bonafide reason for the delay in deposit, could not be brushed aside without consideration. The appropriate authority should have given him reasonable opportunity to explain and considered his explanation. Nothing of the sort appears to have been done. In spite of the fact that the petitioner was called upon to produce his medical certificate and the petitioner had actually furnished the certificate, even a reference to that has not been made in the impugned order while removing his name from the register. The petitioner had not only made the deposit before the passing of the impugned order but, the said order had not even been notified under rule 13 before interim stay was granted by
8. A word about the efficiency on the part of the respondents According to the respondents, the deposit should have been made on or before January 12, 1988. The deposit was actually not made on May, 1988. However, it was more than a year after the petitioner had made the deposit that the Commissioner and Secretary to Govt. Haryana (Department of Administration of Justice) chose to pass an order removing the petitioner's name from the register. Not only this, the order was required to be notified in the Gazette. The said notification was not published till August, 1989 when the petitioner had approached this Court and an order of interim stay had been granted to him. Further, in Para No. 3 of the written statement it has been clearly stated as under:--
"That para No. 3 is admitted to the extent that the petitioner had deposited the requisite fee to practise as Notary and his certificate was valid up to 12-1-1989".
Again, in para No. 4 it has been, inter-alia, stated that "when the petitioner knew that the date of the certificate to practise as Notary was to expire on 12-1-1989 the petitioner ought to have applied somewhere in the first week of December, 1987 to ensure about the continuity of certificate before the date of expiry". The above extracts are from the affidavit filed by Mr. G. Parsana Kumar, Joint Secretary, Home, Haryana. If one were to pin down the respondents to their affidavit before this Court, the whole order is totally invalid as the deposit had, in fact, been made in May, 1988 while according to the respondents, the term was to expire on January 12, 1989. No care appears, to have been taken while filing the affidavit in this Court. Even though Mr. Kumar has appended his signatures on every page of the affidavit, the statement of facts does not appear to have been noticed at all. It is the typist's devil. Still, it is an affidavit filed in a Court. The officer would do well to be more careful.
9. The writ petition is accordingly allowed The order at Annexure P-8 is set aside. The petitioner shall be entitled to his costs which are assessed at Rs. 3,000/-.