TaxTMI 
TaxTMI 
TaxTMI 
2011 (11) TMI 864
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....titioner on 22.01.2011 had authenticated two notarial affidavits of marriage and a deed of agreement between Mamata Kumari Singh and Rajkishore Naik declaring therein that they have married to each other. The said Mamata and Rajkishore were also present when both the affidavits and agreement were presented before the petitioner by one Sambhunath Behera, Advocate of Angul Bar Association. Learned Advocate Sambhunath Behera also submitted the birth certificate of Mamata and Rajkishore. After verifying the contents of the said affidavits and agreement and both of them having identified by Advocate Sambhunath Behera, the petitioner authenticated the above affidavits and agreement in presence of two witnesses, who claimed to be the well wishers of both Mamata and Rajkishore. 2. While the situation remains thus, the mother of Mamata Kumari Singh filed a complaint case bearing ICC No. 54 of 2011 before the learned S.D.J.M., Angul protesting the said marriage on the ground that her daughter Mamata is a minor and has been kidnapped by accused-Rajkishore Naik. The learned S.D.J.M., Angul directed the Police to register the complaint as an F.I.R. and take up investigation. In course of inves....
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....nduct. Hence, the present writ petition. 3. Mr. M.S. Panda, learned counsel appearing for the petitioner submits that initiation of the suo motu proceeding is illegal, whimsical, arbitrary and reflects non-application of mind. The petitioner has been duly appointed as a Notary since 2002 and he is governed by the Act, 1952. Under Section 8 of the said Act, the function of a Notary is to verify, authenticate, certify or to attest the execution of any instrument, administer oath or take affidavit from any person and to prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may confirm to the law of the place where such deed is entitled to operate. Hence, a Notary is a Special Officer appointed by the State Government who is authorized to administer oath and verify from the Deponent the facts/statements contained in the affidavit. As per Rule 11(8) of the Notaries Rules, 1956 a Notary may draw, attest or certify documents under his official seal including conveyance of properties and prepare will or other testamentary documents and prepare and take affidavits for various purposes for his notarial acts.....
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....site party which is mala fide and arbitrary. 5. The petitioner verified the birth certificate of Mamata Kumari Singh and Raj Kishore Naik, who were present before him and signed the affidavits after being satisfied that both the parties had attained their majority. The petitioner also inquired from the parties regarding the contents of the Affidavits to which they clarified that they knew the contents of these documents which were prepared by their Advocate according to their instructions. It was ascertained from the parties that on 22.01.2011 before coming to the petitioner both of them got married to each other in the temple of "Maa Budhi Thakurani" at Angul in presence of their well-wishers with due observance of Hindu rituals and Customs. The petitioner also tallied the documents with the Birth Certificates produced before him and found that the parties had attained their majority and were capable of swearing the Affidavits and executing the agreement. After verifying the necessary documents as well as the statements made in the affidavits and agreements and those being duly identified by an Advocate, the petitioner authenticated both the documents and made necessary entries i....
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....ticated two notarial affidavits of marriage and a deed of agreement executed between Mamata and Rajkishore Naik to the effect that they had married to each other. Subsequently, the mother of Mamata filed a complaint case bearing I.C.C. No. 54 of 2011 before the learned S.D.J.M., Angul, protesting the said marriage on the ground that her daughter Mamta was a minor at the relevant time and was kidnapped by the accused Rajkishore Naik. The learned S.D.J.M. directed the Police to register the complaint as an FIR and take up investigation. In course of investigation, accused Rajkishore Naik was arrested by the Police and BLAPL No. 14855 of 2011 was filed before this Court for his release. This Court on 19.08.2011 while directing release of the accused, kept the bail application pending and the learned Addl. Government Advocate was directed to obtain instructions from the Law Department as to whether the Notaries have authority to allow Notarial Affidavits evidencing solemnization of marriage even in case of minor girls without verifying the records regarding their age and whether any action can be taken against such Notaries. This Court also directed the Law Secretary to issue notice to....
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....y and are quite capable of swearing affidavit and executing agreement. 7. That I am also fully satisfied that the parties are executing their respective documents while in good state of mind and on their own volition without any force or motivation from any corner. So, I put my seal and signature on both the documents and made necessary entries in my register. 13. Subsequently, the Competent Authority issued notice of show cause along with statement of charges as provided under Rule 13(4-A) of the Rules, 1956. The said show cause notice reads thus: "NOTICE TO SHOW CAUSE with Statement of Charges (Under Rule 13(4-A), Notaries Rules, 1956,) No. 9076/L dt. 20.09.2011 Whereas in pursuance of the Orders of Government of Orissa dt. 08.09.2011, the State Government have initiated a suo-motu proceeding against Sri Rohit Kumar Behera, Notary, Angul, Regd. No. ON 09/2002 on the following Charges: That on 22.01.2011, two affidavits were purported to have been sworn before you in your capacity as Notary evidencing solemnization of marriage between Mamata Singh and Rajkishore Naik, without verifying the records regarding their age and showing the girl as major which constitute gros....
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....ecessary to regulate the work of the Notaries. 19. Rule 13 of the Rules, 1956 provides for "Inquiry into the allegations of professional or other misconduct of a Notary". According to the said provision, an inquiry into the misconduct of a Notary may be initiated either suo motu by appropriate Government or on a complaint received in Form-XIII. Admittedly, in the present case, no complaint has been received by the appropriate Government in form-XIII from any person. The inquiry has been initiated suo motu by the appropriate Government and the petitioner has been served with the notice along with statement of charges to show cause within fourteen days from the date of issuance of the notice as to why action as specified under law shall not be taken against him for the alleged misconduct. 20. Law is well settled that unless it is shown that the notice to show cause has been issued palpably without any authority of law, the show cause notice can not be quashed in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution. 21. In A.V. Venkateswaran, Collector & Customs, Bombay vs. Ramchand Sobhraj Wadhwani & Anr., AIR 1961 SC 1506 the Constitution Bench of the Hon&....