- (1.) JUDGEMENT This is a petition under Article 226 of the Constitution. The petitioner was enrolled as a Notary Public for the first time in 1959 to practise as such at Lucknow. His certificate was renewed for a period of three years with effect from 20th August, 1962. It was during this period of renewal that a complaint was made against him by another Advocate, Sri Krishan Chandra on 2nd May, 1963 to the State Government in Form 13 as required by the Notaries Rules, 1956. This complaint was referred for enquiry to the Competent Authority, namely, the District Judge, Lucknow. On the basis of the allegations made in the complaint the Competent Authority framed the following three charges : 1. That he (the petitioner) made no entry in his register regarding the three affidavits dated 25-7-1961, 24-8-1961 and 24-8-1961 of Sarju Prasad, Inder Prakash and Chandra Mohan and thus contravened Rule 11 of the Notaries Rules. 2. That none of these four affidavits were stamped with notarial stamp as required under Article 42 of the Stamp Act. 3. That none of these four affidavits was stamped with adhesive stamps in accordance with Sections 10 and 11 or the Stamp Act, though it was the duty of the Notary to see that the affidavits were duly stamped before he administered oath to the deponents, and got them verified. The petitioner was called upon to file a written statement which he did. A true copy of the written statement is Annexure 4 to the petition. After holding an enquiry on the basis of the above mentioned charges the Competent Authority submitted his report on 18th February, 1964 to the State Government saying that the charges levelled against the respondent (the petitioner) have been brought home to him. After receipt of the said report of the Competent Authority the State Government on 11th March 1964 issued a notification purporting to be under Section 10 of the Notaries Act, 1952 read with clause (b) of sub-rule (12) of Rule 13 of the Notaries Rules, 1956 cancelling with effect from the date of the notification the certificate of practice granted to the petitioner and perpetually debarring him from practising as such. Aggrieved by this notification the petitioner filed a writ petition under Article 226 of the Constitution which came to be registered as Writ Petition No. 380 of 1964 (All). It was dismissed by a learned Single Judge of this Court by his order dated 7th May, 1965. Aggrieved by the said order the petitioner preferred a special appeal which came to be decided in his favour on 6th September, 1966. The decision of that special appeal is reported in AIR 1967 All 173, Kashi Prasad Saxena v. State of Uttar Pradesh, Lucknow. As a result of the decision in the special appeal the State Government issued notification dated 28th February 1967, a copy of which is Annexure 6 to the petition, cancelling the earlier notification by which the petitioners certificate to practise as a Notary was cancelled. Soon thereafter the certificate authorising the petitioner to practise as a Notary for a period of three years with effect from 20th August, 1965 was issued and as alleged by the petitioner he actually received it on 10th March 1967. A copy of the certificate thus issued is filed as Annexure 1 to the petition. It purports to have been signed on 29th September, 1967 but the petitioner showed me the original in the course of the arguments and it appears therefrom that it was signed on 25th September, 1967. Obviously, the year 1967 as mentioned therein is a mistake for the year 1966. It is also the allegation in paragraph 17 of the petition though no doubt there also the mistake is committed in so far as it purports to say that it was signed on 25th June, 1966 whereas the fact appears to be that it was actually signed on 25th September, 1966. Another communication dated 3rd March 1967, a copy of which is Annexure 7 to the petition, was issued to the petitioner along with which a copy of the report of the Competent Authority dated 18th February, 1964 was furnished to the petitioner and he was required to submit his explanation in his defence within 14 days of the receipt of the communication. The petitioner actually submitted his explanation on 10th April, 1967 by which time he was allowed to submit his explanation. A true copy of that explanation is Annexure 8 to the petition. Thereafter on 30th June, 1967 the State Government issued another notification, a copy of which was issued to the petitioner and which is Annexure 9 to the petition, by which the State Government purporting to act under Section 10 of the Notaries Act, 1952 read with clause (b) of sub-rule (12) and sub-rule (13) of R. 13 of the Notaries Rules, 1956 cancelled with effect from the date of publication of the notification in the Gazette the certificate of practice granted to the petitioner and ordered the removal of his name from the register of Notaries with effect from the same date. It is against this order that the present petition is directed.
(2.) THE petitioner challenges the validity of the impugned order on various grounds including that of mala fides. The prayer in the petition is that the notification (Annexure 9) be quashed and the State Government, namely, the opposite party, be directed not to give effect to the orders contained in the impugned notification. The petition is opposed by the opposite party. A counter affidavit has been filed on behalf of the opposite party.
(3.) I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the opposite party. The first and the foremost contention raised on behalf of the petitioner is that the impugned order which proceeds on the basis that the petitioner has been guilty of such professional misconduct as to render him unfit to practise as a Notary stands vitiated for the simple reason that no charge of professional misconduct was ever levelled against the petitioner. This argument proceeds on the basis that the charges framed by the Competent Authority, as enumerated above, clearly indicate that there was no charge of professional misconduct with the result that the petitioner never had any opportunity to show to the Competent Authority that, even though those charges be taken to have been proved, there would be no basis for coming to the conclusion against the petitioner that he was, therefore, guilty of professional misconduct much less guilty of such professional misconduct as would render him unfit to practise as a Notary. Likewise, it is further pointed out that even the notice calling upon the petitioner to submit his defence with reference to the report of the Competent Authority, (Annexure 7) makes no mention of the fact that the charge against the petitioner in view of the findings reached by the Competent Authority was that he was guilty of professional misconduct with the result that he had no opportunity even to show to the State Government that there could be no such charge on the basis of the charges framed and findings recorded by the Competent Authority. As against that the contention of the learned Standing Counsel is that having regard to the language of Rule 13 of the Notaries Rules 1956 under which the enquiry was admittedly held, there is no escape from the conclusion that the enquiry was being made on the basis that there was a reasonable ground to believe that the petitioner had been guilty of professional misconduct though no doubt that belief was based on the allegations contained in the complaint lodged by Sri Krishna Chandra. Nobody has cared to place a copy of the complaint that was actually lodged by Sri Krishna Chandra. If one is to judge the allegations in the complaint on the basis of the charges framed by the Competent Authority which I have reproduced above then the inevitable conclusion is that there was no allegation of professional misconduct against the petitioner. At this stage learned Standing Counsel has drawn my attention to the fact that the file is with him on the record of which is the complaint filed by Sri Krishna Chandra which may be perused. It is unnecessary to peruse it because it is conceded that it does not contain any express allegation of professional misconduct. Thus, it is now conceded that the allegations in the complaint of Sri Krishna do not go beyond the charges framed by the Competent Authority. Such being the position I am of opinion that the stand taken by the petitioner as mentioned above is not without substance. In the special appeal reported in AIR 1967 All 173 it is observed in paragraph 27 of the report on page 180 :- "We have seen the record of the case maintained in the U. P. Secretariat. It does not appear that the State Government ever addressed itself to the question as to whether or not on the facts proved in the case the petitioner-appellant could be adjudged guilty of professional misconduct as distinct from negligence or mere lapse and whether the professional misconduct, if any, was so gross as, in the opinion of the Government, renders him unfit to practise as a Notary." It is thus abundantly clear that till before the disposal of the special appeal of the petitioner the authorities did not at all advert to the relevant requirement of the rule of law in order to take action which they purported to do under the notification of 1964, since quashed (Sic) the rule of law contained in Clause (d) of Section 10 of the Notaries Act, 1952. That being so, it is difficult to accept the contention of the learned Standing Counsel that simply because the enquiry purported to proceed in accordance with rule 13 of the Rules it should be taken for granted that the petitioner was apprised of the fact that the question whether or not he was guilty of such professional misconduct as would render him unfit to practise as a Notary was being enquired into as a result of the complaint made by Sri Krishna Chandra. What is still more surprising is that even though the opposite party thought fit to resume proceedings from the stage subsequent to the submission of the report by the Competent Authority in view of the decision given in the special appeal, it still omitted to take notice of the material observations made in paragraph 27 of the report referred to above while issuing notice to the petitioner calling upon him to submit his defence with reference to the report of the Competent Authority, as is abundantly clear from a perusal of Annexure 7, which is a true copy of that notice. Thus, on the facts of the case as appear from the record there is no escape from the conclusion that all concerned with the enquiry were totally oblivious of the fact that no enquiry under Rule 13 of the Rules could legitimately be initiated unless it could be said on the basis of the allegations contained in the complaint that those allegations, if proved, would establish professional misconduct on the part of the petitioner of such a nature as would render him unfit to practise as a Notary. Had it been otherwise there must have been a mention of that fact, if not in the charges themselves, at any rate, at any stage subsequent thereto till the stage of the issue of notice (Annexure 7). In these circumstances I have no hesitation in coming to the conclusion that the impugned order proceeds on a basis of which the petitioner was never apprised with the result that he had no occasion either to convince the Competent Authority or thereafter the opposite party that the allegations contained in the complaint of Sri Krishna Chandra, even if found proved, would not establish professional misconduct much less professional misconduct of such a nature as to render him unfit to practise as a Notary. In that view of the matter the impugned order cannot possibly be sustained. ;