State Government Has Power To Permanently Debar Delinquent Notaries: Gujarat HC [Read Judgment]

"The right to practice as a notary is not an absolute right or an indefeasible right but is dependent upon a person in question being found fit to practice as a notary and capable of meeting with the high moral standards that such a person should possess to discharge his duties.

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…having regard to the nature of the professional misconduct or any other misconduct, it is open for the State Government to perpetually debar the Notary from practice." the bench of Justice JB Pardiwala and Justice Vireshkumar B. Mayani said.

The order was passed while disposing of an appeal filed by the State government against the order of a Single Judge of the high court who had held that the government could not permanently debar a notary.

The Single Judge had favored the Respondents herein on two grounds:

1. The power of state government to permanently debar a Notary, as envisaged under Rule 13(12)(b) of the Notaries Rules, was ultra vires the parent Act, i.e., Notaries Act, 1952.
2. The State ought to have given the Notary an opportunity of hearing before cancelling its certificate and imposing the penalty.

Considerably, the Respondent herein came to be appointed as a Notary Public by the Gujarat government in July 2002. On receiving a complaint against him for fraudulently notarizing a power of attorney, an inquiry was initiated. In his report, the inquiry officer concluded that the Respondent had committed a serious misconduct under Section 10(d) of the Notaries Act. Accordingly, a penalty, permanently debarring him from practice, was imposed by the state government under Rule 13(12)(b)(i) of the Notaries Rules.

Findings

On perusing various provisions as referred to above, the court concluded that the power of state government to sanction penalties against a delinquent Notary was not merely restricted to Section 10 of the Notaries Act.

"We find it difficult to take the view that Section 10 of the Act is the only source of power for the purpose of imposing penalty or punishment upon a Notary Public for the professional or any other misconduct… Section 10 is not the repository of the power to impose appropriate penalty or punishment," the court said.

It then referred to Rule 13(12)(b) which the state government had used to permanently debar the Respondent's practice as a Notary. It reads as under:

"…(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

1. Cancelling the certificate of practice and perpetually debarring the notary from practice; or
2. suspending him from practice for a specified period, or
3. letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved."

In this view, the court held that the power to suspend the practice of a Notary included the power of suspending its license for perpetuity.

"Rule 13 of the Rules has been made to give effect to the provisions of the Act… Once the certificate of practice is cancelled, the name of the Notary from the register will have to be deleted or removed. However, that does not mean that the State Government is not empowered or competent to pass an order of perpetually debarring the Notary from practice or suspend him from practice for a specified period.

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…We hold that Rule 13(12)(b) of the Rules is valid and in a given case, more particularly, having regard to the nature of the professional misconduct or any other misconduct, it is open for the State Government to perpetually debar the Notary from practice," the court said.

However, the court agreed with the Single Judge that the state ought to have given the Respondent an opportunity of being heard before passing the final order of debarment.

"After the issue of show cause notice by the Inquiry Officer, no further hearing was given to the original petitioner to make good his case that the findings recorded are incorrect or that the case is of no evidence and the same does not warrant imposition of extreme punishment of perpetually debarring from practice as a Notary.

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…We are of the view that the Notary Public may not be entitled to be heard for the second time with regard to penalty or punishment, but at least the State Government needs to give an opportunity of hearing with regard to the findings recorded by the Inquiry Officer in his inquiry report."

Thus, allowing the appeal in part, the Court directed the state government to grant an opportunity of hearing to the Respondent and complete the exercise within fifteen days.

The State was represented AG Trivedi with Advocates Rakesh Patel and Vinay Vishen and the Respondent Notary by Senior Advocate Mehul Shah and Advocate Jay Thakkar.

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