2011 (11) TMI 864 - HC - Indian Laws

Court upholds show cause notice, grants petitioner reply opportunity within two weeks. Competent Authority to follow Rule 13.

The court found the show cause notice was not issued without jurisdiction and disposed of the writ petition, granting the petitioner the opportunity to ... Petition for quashing/setting aside initiation of suo motu proceedings by Competent Authority - gross misconduct on the part of the Notary - without application of mind - The State Government has initiated a suo motu proceedings against the petitioner for authenticating two marriage affidavits evidencing solemnization of marriage without verifying the records regarding the age of the girl which constitute gross misconduct/unbecoming on the part of the Notary. The petitioner has been further noticed to show cause within 14 days from the date of receipt of the same as to why action as prescribed under law shall not be taken against him for the aforesaid misconduct. Hence, the present writ petition. HELD THAT:- In the case at hand, it is nobody's case that the show cause notice has been issued by an authority without having jurisdiction to issue such notice. Moreover, the stand taken by the petitioner in this writ petition is almost similar to the stand taken in his reply letter dated 07.09.2011 (Annexure-3) submitted before the Principal Secretary to Government, Department of Law pursuant to letter dated 27.08.2011 (Annexure-2) which are disputed questions of fact and cannot be gone into by this Court in exercise of power under Articles 226 and 227 of the Constitution. Therefore, this writ petition is disposed of giving liberty to the petitioner to file his reply to the notice of show cause under Annexure-4 within two weeks from the date of receipt of a copy of this judgment. If such reply is filed by the petitioner, the same shall be considered and disposed of by the Competent Authority by strictly following the procedure prescribed under Rule 13 of the Rules, 1956. the writ petition is disposed of. The functions and transactions of business by Notary as envisaged in Section 8 of the Act, 1952 and Rules, 1956 respectively cannot be done in a routine manner without application of mind; otherwise the very purpose of enacting Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 would be frustrated because sanctity is attached to the certificate of the Notary. Thus, Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 cast an obligation on Notary to apply his mind while discharging his notarial functions and transactions of business. Issues Involved:1. Prematurity of the writ petition.2. Validity of the suo motu proceedings and show cause notice.3. Appropriate order to be passed.Issue-wise Detailed Analysis:1. Prematurity of the Writ Petition:The court considered whether the relief sought by the petitioner was premature. The petitioner challenged the show cause notice and initiation of suo motu proceedings, arguing they were illegal, whimsical, and arbitrary. The court noted that the show cause notice was under challenge, and the writ petition's maintainability was questioned on the grounds of prematurity. The court emphasized that unless a show cause notice is issued without any authority of law, it should not be quashed in the exercise of writ jurisdiction under Articles 226 and 227 of the Constitution.2. Validity of the Suo Motu Proceedings and Show Cause Notice:The petitioner, a Notary, authenticated two notarial affidavits of marriage and a deed of agreement without verifying the age of the girl involved, which led to a complaint by the girl's mother. The court examined whether the suo motu proceedings and the show cause notice were valid. The petitioner argued that his actions were within the scope of his duties under the Notaries Act, 1952, and the Notaries Rules, 1956. The court reviewed the relevant provisions, including Section 8 of the Act and Rule 11 of the Rules, which outline the functions and duties of a Notary. The court found that the Notary must apply his mind while discharging his notarial functions and that the sanctity attached to a Notary's certificate necessitates careful verification of documents.The court also referenced previous cases, such as the Division Bench's observation that a Notary does not have the competence to issue a marriage certificate but can verify declarations made by parties. The court concluded that the suo motu proceedings were initiated in accordance with Rule 13 of the Rules, which allows for inquiries into allegations of professional or other misconduct of a Notary, either suo motu or on a complaint.3. Appropriate Order to be Passed:The court held that the show cause notice was not issued without jurisdiction and that the disputed questions of fact raised by the petitioner could not be resolved in the writ jurisdiction. Therefore, the court disposed of the writ petition, granting the petitioner liberty to file a reply to the show cause notice within two weeks. The Competent Authority was directed to consider and dispose of the reply by strictly following the procedure prescribed under Rule 13 of the Rules, 1956.Conclusion:The writ petition was disposed of, allowing the petitioner to respond to the show cause notice. The Competent Authority was instructed to follow the prescribed procedure in considering the petitioner's reply. No order as to costs was made.