Jammu & Kashmir High Court
Krishan Chand vs State Of J&K And Ors on 22 May, 2013
Equivalent citations: AIR 2013 JAMMU AND KASHMIR 103
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 477 of 2012 CMA No. 655 of 2012 Krishan Chand Petitioners State of J&K and ors. Respondents !Mr. P. N. Raina, Sr. Advocate Mr. J. A. Hamal, Advocate ^Mr. Gagan Basotra, Sr. Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 22/05/2013 : J U D G M E N T :
(Oral)
1. This case projects a classical example of povertys powerlessness.
2. The petitioner is an Advocate and is above seventy years of age. He in essence is a non practicing/non-professional Advocate. In order to earn livelihood, he applied to the competent authority for grant of certificate of practice as Notary under The Notaries Act, 1952 (for short the Act of 1952) and The Notaries Rules, 1956 (for short the Rules of 1956). The competent authority, after considering the application of the petitioner and after entering into satisfaction in accordance with the Act of 1952 and the Rules of 1956, issued the certificate of practice in favour of the petitioner on 14th day of January, 1993. Since nothing adverse was brought to the notice of the competent authority against the petitioner, certificate of practice was renewed in terms of Section 5(2) of the Act of 1952 at regular intervals.
3. Petitioner was working as Notary in the office premises of Deputy Commissioner, Jammu. It is stated at the Bar that office of the Custodian Evacuee Property is also located at a short distance from the office of the Deputy Commissioner, Jammu. Petitioner, who was earning his livelihood by practicing as a Notary Public was deprived of the sole source of sustenance by issuance of notification SRO 391 dated 21.12.2009 whereunder the competent authority in exercise of the powers conferred by clause (d) of Section 10 of the Act of 1952 read with Sub Rule 13 of the Rules of 1956 removed the name of the petitioner from the Register of Notaries maintained under Section 4 of the Act of 1952. It is this notification as also the report of respondent no. 3 dated 03.11.2009 and the show cause notice issued by respondent no. 2 dated 18.11.2009 which are sought to be declared as null and void, non-est and against the provisions of the Act of 1952 and the Rules of 1956. Further prayer is made in the writ petition that the respondents be directed to re-include the name of the petitioner in the Register of Notaries maintained under Section 4 of the Act of 1952. It is further prayed that respondents be directed to renew the petitioners license under rules for a further period in accordance with the Act of 1952 and the Rules of 1956.
4. On notice issued, respondents 1 and 2 filed objections.
5. Mr. P. N. Raina, learned Sr. Advocate appearing for the petitioner argued with his usual dexterity. Learned counsel referred to the material placed on the record which includes the enquiry conducted by the learned Principal District Judge, Jammu, show cause notice and the reply of the petitioner. Learned counsel submitted that petitioner has not committed any misconduct which would warrant for initiation of action for removal of his name from the Register of Notaries maintained under Section 4 of the Act of 1952. Learned counsel submitted that there has been total non compliance with the rule 13 of the Rules of 1956. Learned counsel submitted that complete procedure is provided in the Rules of 1956 for conducting enquiry but respondents have committed breach of statutory rules and there is total non compliance with the Rules of 1956, which renders the initiation of entire proceedings and its culmination in issuance of impugned SRO, illegal and without authority of law. Learned counsel submitted that the expression misconduct has not to be read in isolation, but has to be considered in the background of the profession of a person. Learned counsel submitted that admittedly, there was no personal pecuniary gain to the petitioner in attesting the agreement form, which was executed on 16.03.2009 between the Custodian General Evacuee Property Jammu and the Dr. Kamal Saini, IPS Dy. Inspector General of Police, Security J&K. Learned counsel submitted that the agreement is related to the lease of the land of Evacuee Department to the Security Headquarters for construction of security headquarter complex and for using it as office complex. Learned counsel submitted that it has been admitted by the petitioner that he attested the document on 19.03.2009 but after persuasion and pressure mounted by the Custodian Evacuee Property, Jammu he changed the date of attestation from 19th March, 2009 to 16th March, 2003. Learned counsel referred to various provisions of the Act of 1952 and the Rules of 1956 and also referred to the judgment of the Allahabad High Court in case titled Kashir Prasad Saksena, petitioner v. State Government of U. P. Lucknow, Opposite Party reported in AIR 1969 Allahabad 195 and prayed for allowing the writ petition.
6. Mr Gagan Basotra, learned Sr. AAG vehemently argued the case and submitted that the change of date of attestation from 19.03.2009 to 16.03.2009 constitutes a grave misconduct and it is for this reason, after complying with the provisions of the Act of 1952 and the Rules of 1956, the name of the petitioner was ordered to be removed from the Register of Notaries maintained under Section 4 of the Act of 1952. Learned counsel produced the record for perusal of the court and prayed for dismissal of the writ petition.
7. Section 3 of the Act of 1952 confers power on the appropriate Government to appoint, any legal practitioners or other persons who possess such qualification as may be prescribed, as Notary. In terms of Section 4 of the Act of 1952, Register of the notaries has to be maintained in the prescribed form. Section 5 of the Act of 1952 deals with entry of names in the Register and issue or renewal of certificate of practice. Section 6 provides for annual publication of lists of notaries. Section 7 deals with seal of notaries. Sub Section (1) of Section 8 authorizes the notary to do all or any of the acts by virtue of his office which acts are mentioned in clause (a) to clause (hb) of sub-section 1 of Section 8. Sub Section 1(a) of Section 8 authorizes a notary to verify, authenticate, certify or attest the execution of any instrument. Section 9 provides for bar of practice without certificate and Section 10 provides for removal of names from Register. Section 10(d) which is relevant for the purpose of this case is taken note of:
xxxxx 10 (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 practice as a notary. (Emphasis supplied)
8. Clause (d) of Section 10 provides that Government, which appointed a notary, may by order remove the name of the notary from the register maintained by it under Section 4 if he 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 practice as a notary.
9. Rule 13 of the Rules of 1956 provides procedure for conducting enquiry into the allegations of professional or other misconduct of a notary. Rule 13 is taken note of:
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.
[(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 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 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 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.
(13) Notification of removal- The removal of the name of any notary from the register of notaries from practice, as the case may be, shall be notified in Official Gazette and shall also be communicated in writing to the notary concerned.
10. The facts and the material placed on the record by the parties bring to the surface one fact that petitioner, a non practicing lawyer, is dependant for his survival upon the practice of certificate issued to him by competent authority under the Act of 1952.
11. A lease deed was executed between the Custodian Evacuee Property, Jammu and the Dr. Kamal Saini, IPS Dy. Inspector General of Police, Security J&K in respect of land measuring 06 kanal and 03 marlas falling under Khasra No. 254 and 245 Revenue Estates Nowabad, Tehsil Jammu. Property was leased out to the Security Department of J&K Police for construction of Security Headquarter complex and for using the same as office complex. This document was executed on 16.03.2009 ass per the admission of the petitioner in his reply to the show cause notice, in his statement before the Principal District Judge, Jammu and in the writ petition itself. The petitioner was called by the Custodian Evacuee Property Jammu on 19.03.2009 and was asked to attest the said document. In the document, the date of attestation was mentioned as 19.03.2009. In his statement before the Principal District Judge, Jammu which was the first opportunity given to him to project his defence and thereafter at every stage, the petitioner, in unequivocal terms, stated that though he mentioned the date 19.03.2009, on which date he attested the document, but he was forced to change it to 16.03.2009. This act of the petitioner was taken to be misconduct in terms of Section 10(d) of the Act of 1952 and ultimately impugned notification SRO was issued thereby removing his name from the Registry of Notaries.
12. Misconduct is a relative expression. Misconduct is an intentional or deliberate deviation from the accepted norms of behavior. A mistake or a human error which would include, working in a particular background under pressure, would not mean intentional deviation from accepted norms of behavior and will not in all circumstances constitute misconduct.
13. In order to arrive at a lawful conclusion, at to whether, the act of petitioner in mentioning wrong date of attestation on the document, would constitute misconduct, following questions would require to be answered:
a. Whether a person against whom the allegations of misconduct are leveled has ever before committed misconduct in his professional life?
b. Whether a person against whom the allegations of misconduct are leveled was direct beneficiary of the act by gaining any pecuniary or other benefit therefrom?
14. Human beings are not infallible. Mistakes or errors are being committed by human beings. But all errors and mistakes committed by human beings, in all circumstances and at all times, may not constitute misconduct. After considering the case of the petitioner on the afore- stated touchstone, it can be safely concluded that petitioner had not committed any misconduct. This conclusion is arrived at because nothing is brought on record to show that prior to this incident, any such allegation was leveled against the petitioner. His license for practice has been renewed at all times by the competent authority in hassle free manner. In this particular case, while attesting the documents which is executed between the two Departments of the State Government, it not even alleged that he had gained any pecuniary or material benefit. Petitioner, as already stated, is a non practicing advocate, who was sustaining himself by discharging the function as a public notary. This petitioner, who admittedly is a powerless person, was summoned to the office of Custodian Evacuee Property, Jammu and was asked to attest the document wherein he mentioned the date 19.03.2009, but the Custodian Evacuee Property compelled him to change the date from 19.03.2009 to 16.03.2009. In the normal course, petitioner should have not agreed to change the date, but in the circumstances in which he had landed, it appears, he had no option, but to change the date. This change of date has not affected any of the rights of the parties to the documents. The Court does not approve the change of date by the petitioner, but in the facts and circumstance of this case, as discussed herein above, it still will not constitute misconduct, but would be a mistake committed by the petitioner. It is also to be noticed that petitioner was in lesser bargaining position viz-a-viz the Custodian Evacuee Property Jammu. In the totality of the circumstances of this case the act of petitioner will not constitute an intentional or deliberate deviation from the accepted norms of behavior. He had to gain nothing from his act of changing the date. He in fact has not gained anything, but in the process has lost his sole source of sustenance.
15. The integrity of petitioner appears to be unquestionable. In order to extricate himself, from the web of circumstances in which he was caught, he could have concocted a defence. He instead choose to make clean breast of all the facts, knowing fully well that by his truthful disclosure, he may have to bear the cross.
16. In the aforesaid backdrop of this case and for the reasons mentioned herein above, it is held that petitioner had not committed any misconduct.
17. Removal of the name of the petitioner from the Register of Notaries has resulted in depriving him of his only source of sustenance. The enquiry into the misconduct of a notary could be initiated either suo-moto by the appropriate Government or on a complaint received in Form XIII. In this case, admittedly, no complaint in Form XIII has been received by the appropriate Government and the appropriate Government has also not initiated action suo moto. The enquiry initiated being in breach of Section 10(d) of the Act of 1952 which provide for following the prescribed procedure, which procedure is reflected in Rule 13 of the Rules of 1956 stands vitiated.
18. The action initiated by respondent no. 3 and proceedings conducted are held to be without any authority of law.
19. For the above stated reasons, this petition along with connected CMAs is disposed of in the following manner:
Notification SRO No. 391 dated 21.12.2009 is declared to be illegal. Respondents no. 1 and 2 are directed not to give effect to the said SRO notification and same is set aside. Report of respondent no. 3 dated 03.11.2009 and show cause notice issued by respondent no. 1 vide dated 18.11.2009 are set aside. It is declared that petitioner would be deemed to be Notary Public and his name will be deemed to be entered in the Register of Notaries maintained under Section 4 of the Act of 1952. Respondents no. 1 and 2, however, will be at liberty to consider the claim of the petitioner for renewal of his certificate for practice in accordance with rules and in the light of observation made in this order. The direction issued would not mean that in future the name of the petitioner cannot be removed from the Register of Notaries. Same can be done if in future any complaint is made and proceedings concluded in accordance with law.
20. Record is returned to Mr. Basotra learned Sr. AAG in the open court.
(Muzaffar Hussain Attar) Judge JAMMU 22.05.2013 Paramjeet