Pravat Kumar Pradhan vs Govt. Of Odisha And Others
2023 Latest Caselaw 6933 Ori

                ORISSA HIGH COURT : C U T T A C K
                               W.P.(C) NO.10000 OF 2019
                                        With
                               W.P.(C) NO. 17987 OF 2022
AFR
      In the matter of applications under Articles 226 and 227 of the Constitution of India.

      In W.P.(C) NO.10000 OF 2019
      Pravat Kumar Pradhan                                    : Petitioner

                                   -Versus-

      Govt. of Odisha and others                              : Opp. Parties

      In W.P.(C) NO.17987 OF 2022
      Pravat Kumar Pradhan                                    : Petitioner

                                   -Versus-

      Govt. of Odisha and others                              : Opp. Parties

            For Petitioner           :     M/s. K.P. Mishra, Sr. Advocate,
                                           D.Ray, B.S. Pattajoshi,
                                           T.K. Pattajoshi and S.Rath, Advocates

            For O.Ps.                :     Mr. Sonak Mishra,
                                           Addl. Standing Counsel
                                     :     None for O.P.3 in W.P.(C) No. 17987/
                                           2022

                                           JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing : 09.05.2023 :: Date of Judgment : 21.06.2023

1. W.P.(C) NO.10000 of 2019 involves the following prayer:-

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"It is therefore, prayed that your Lordships may graciously be pleased to admit this writ application and to issue Rule NISI calling upon the opposite parties to show cause as to why the impugned orders under Annexure-1 and 2d being illegal and arbitrary shall not be quashed and if the said opp. Parties fail to show cause or show insufficient cause, make the said rule absolute.

And further the operation of the impugned order under Annexure-1 and 2 be stayed till the disposal of the writ application.

And pass any other orders/directions as this Hon'ble Court deems just, fit and proper.

And for this act of kindness, the petitioner as in duty bound shall ever pray."

2. W.P.(C) No.17987 of 2022 involves the following prayer:-

"Under the aforesaid facts and circumstances, it is therefore, prayed that this Hon'ble Court may graciously be pleased to:

(i) direct/order the Opp. Party No. 1 State Government to pass necessary Order in exercise of their power Under Rule 13(12)(a) of Notaries Rules on the basis of a fresh enquiry, being conducted by the Opp. Party No. 2, Competent Authority in accordance with the procedure established by law, within a stipulated period as may be prescribed by this Hon'ble Court for the interest of justice;

(ii) direct/order the Opp. Party No. 1 State Governments to dispose of the representation of the Petitioner as at Annexure- 4 in accordance with law;

(iii) pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice; And for this act of kindness, the petitioner as in duty bound shall ever pray."

3. What appears here is W.P.(C) No. 10000/2019 is filed by the

Petitioner being aggrieved by the orders of the Competent Authority, vide

Annexure-1 and 2. Annexure-1 being the Notification of the Law

Department dated 15.05.2019 cancelling the Certificate of Practice

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perpetually debarring Shri Pravat Kumar Pradhan, Notary, Kendrapara,

the Petitioner having Registration No.ON-67/2009 from practicing as a

Notary, w.e.f. the date of issue of the Notification. Annexure-2, the

further Notification issued by the Government pursuant to the decision,

vide Annexure-1 in exercise of power under Section 10(d) of the Notaries

Act, 1952 read with Rule 13(13) of the Notaries Rule, 1956 removing the

name of the present Petitioner from the Register maintained under

Section 4 of the Notaries Act for finding him guilty of professional

misconduct and in the opinion of the Government, such act renders him

unfit to practice as a Notary.

4. Subsequently, but during pendency of W.P.(C) No. 10000/2019,

the Writ Petition bearing W.P.(C) No. 17987/2022 appears to be filed, as

indicated hereinabove making a simple request for considering the

representation of the Petitioner at Annexure-4 herein, as a matter of

review of the orders at Annexure-1 and 2 in W.P.(C) No. 10000/2019.

This Court here observes, the outcome in W.P.(C) No. 17987/2022

remains dependent on the ultimate outcome in W.P.(C) No. 10000/2019.

Thus this Court proceeds to decide the dispute involving W.P.(C)

No.10000/2019.

5. Facts involving the case as briefed and submitted in course of

hearing in W.P.(C) No. 10000/2019, the Petitioner, who is an advocate,

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was appointed also as a Notary in the district of Kendrapara having

Registration No. ON/67 of 2009. While continuing as such the Petitioner

received a notice from the Competent Authority dependent on the

complaint submitted by one Sonia Behera, D/o- Rabindra Swain,

Vill/PO-Harirajpur, P.S.-Banki, Dist-Cuttack. There has been decision for

conducting an enquiry under Rule 13(1) of the Notaries Rules, 1956. The

Petitioner, vide communicated dated 28.11.2018 issued by the Competent

Authority, was directed to file show cause on the allegations made in the

complaint. Notice to show case dated 05.12.2018 is filed herein as

Annexure-3. Annexure-4 claims to be the complain against the Petitioner

dtd.16.11.2018 involved therein. It is pursuant to the aforesaid asking of

the Competent Authority, the Petitioner submitted his response to the

show cause notice vide Annexure-5 completely denying the allegation

therein. The Petitioner further pleaded, after receipt of the response, the

Petitioner was requested by the Law Department in their letter dated

01.03.2019 to appear before the Competent Authority-cum-Principal

Secretary to Government on the date and time fixed therein particularly

on 23.03.2019 at 4 P.M. either in person or through the legal professional

for making his submission as finds place at Annexure-6. It is averred, the

date of hearing appearing in the communication dated 25.03.2019 was

postponed to 20.04.2019, on which date both the complainants and the

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Petitioner herein were present with their respective lawyers. However,

neither the complainant nor his witness was examined or cross-examined.

Similarly, neither the Petitioner nor any witness from the side of the

Petitioner nor any document from his side, it is even complained that the

Petitioner claimed to be examined himself and bring some documents,

however, the Competent Authority refused on the understanding that

there is no prima facie evidence against the Notary to proceed with

further inquiry. Communication for postponement of the matter to

20.04.2019 is filed as Annexure-7. The Petitioner by way of his response

contended, documents involving the inquiry were duly executed on

10.09.2018 and 11.09.2018 in presence of their advocate one Shri

Ramakanta Kanungo and the Petitioner simply attested the document as a

Notary under Section 8(1)(a) of the Notaries Act, 1952. The Petitioner

thus claimed, he has not committed any illegality in the execution of the

document on the other hand the documents were prepared with the power

of jurisdiction under the Notaries Act. The Petitioner disputed for having

issued with any Notarial Certificate pursuant to such document. The

Petitioner also enclosed both the documents as Annexure-8 and 9.

In the above background of the matter and further taking this Court

to the provision at Section 8(1)(a) of the Notaries Act, 1952 reading

together with the instruments at Annexures-7 & 8 to the Writ Petition Mr.

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K.P. Mishra, learned Senior Advocate appearing on behalf of the

Petitioner attempted to contend that the Notary had the authority to attest

and authenticate the instruments and for there is clear provision at Section

8(1)(a), Mr. K.P. Mishra, learned Senior Advocate taking this Court to

the inquiry report vide Annexure-A/2 and the communication at

Annexures-1 & 2 contended that the competent authority entering into the

questions relating to the validity of instruments remains contrary to the

power conferred under the provisions of the Notaries Act, 1952. Mr. K.P.

Mishra, learned Senior Advocate further also contended that the

communications at Annexures-1 & 2 are without jurisdiction.

6. To the contrary, based on the notice there has been filing of counter

affidavit on behalf of Opposite Party Nos.2 & 3 thereby strictly

contesting the claim of the Petitioner. Mr. Sonak Mishra, learned ASC

while not denying the fact that Petitioner herein was continuing as a

Notary also contended that there has been neither examination of any

witness nor marking of any documents from either side. Mr. Sonak

Mishra, learned ASC, however, taking this Court to the counter affidavit

of Opposite Party Nos.2 & 3 reading together with the observations in the

impugned order contended that the claim of the Petitioner that his attempt

to examine himself as witness to satisfy the document at his instance has

been refused to be entertained by the competent authority on the premises

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that there is no prima facie evidence against the Notary to cause an

inquiry, are all false. Mr. Sonak Mishra, learned ASC, on the other hand,

contended that there never involved any such request either orally or by

way of written at any stage of inquiry. Mr. Sonak Mishra, learned ASC

further contended that there has been threadbare consideration of the

submissions and response involved therein along with documents from

the side of the Petitioner and accordingly there has been justified opinion

formed by the competent authority in cancelling the notary registration of

the Petitioner. It is on the premises that both the documents were attested

Mr. Sonak Mishra, learned ASC contended that the Notary becomes

automatically a party to such illegal activities and such action amounts to

guilty for performing such misconduct. Mr. Sonak Mishra, learned ASC,

therefore, attempted to justify the inquiry report vide Annexure-A/B. On

the allegation of non-compliance of natural justice Mr. Sonak Mishra,

learned ASC contended that proposition mooted by the Petitioner herein

are all related to disciplinary proceeding and no way attracted to the

nature of inquiry involved herein. In the process Mr. Sonak Mishra,

learned ASC attempted to justify the communication vide Annexure-1 &

2 remaining in full attendance of Rule 13(12)(b)(i) and further the

communication at Annexure-2 was in strict terms of the provision at Rule

13(13) of the Notaries Rule, 1956. Mr. Sonak Mishra, learned ASC

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further contended that for the dispute between the parties centering on

attestation of two instruments and for the admitted position that the

Notary has attested such documents, there was necessity of conducting

the inquiry and for the admitted materials there was no other view

possible than the report vide Annexure-A/2.

It is, in the above background of the matter, Mr. Sonak Mishra,

learned ASC reading through the other grounds taken by the competent

authority through their counter affidavit, attempted to substantiate the

impugned orders and thus requested for dismissal of the Writ Petition for

there is no scope for interfering in the impugned orders.

7. This Court here finds filing the complaint as appears at Annexure-4

also copy available herein, Paragraph-3 of which appears to be factual

disclosure and Paragraph-3(a) & (b) appear the following complaint:-

"3. Particulars of Complaint in Paragraphs consecutively numbered.

a) That the complaint was married to Malaya Ranjan Behera on 17.04.2010 out of the wed lock one girl child named Subhalaxmi Behera was born on dated 17.02.2011. She then the husband of the complainant has been torturing the complainant for giving birth to a girl child and for demand of dowry through took 90(Ninety) thousands in cash. The tortures were mentally, physically and fiscally by demanding more and more money and still demanding 30(Thirty) thousand. On 11.09.2018 Notary Pravat Kumar Pradhan and Advocate Ramakanta Kanungo with prior conspiracy with complainant's husband have notarized 2(Two) deeds under coercion and pressure threatening life and liberty of the complainant which have crossed all the limits.

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b) That on 12.10.2018 when the complainant received the Xerox copy of 2(Two) deeds then only she knew from learned persons at her parent's residence that one deed is for dissolution of Marriage with legally wedded husband, of the complainant. Malaya Ranjan Behera mentioning no claim of the complainant for permanent alimony and another deed for declaration of marriage of complainant with a person named Prafulla Nayak who is a villager and friend of complainant's husband. Both deeds were made on dated 11.09.2008 by cheating the complaint."

At the end of the complaint, the complainant also attempted

showing readiness with witnesses at least one witness namely Sukanti

Swain and also intending to enclose about four documents. Annexure-1

and 2 being dissolution of marriage and declaration of marriage

respectively. In his response to the complaint, the Petitioner submitted his

response to the subsequent allegation at Paragraph-3(a) & 3(b) as

follows :-

"8. That, the averment in Para-3(a) "the tortures were mentally, physically and financially by demanding more and more money and still demanding Rs. 30,000/- (Thirty Thousand)" is not within the knowledge of this respondent, complainant has not disclosed before the respondent when she was asked about execution of document hence the same is denied by the respondent.

9. That, in Para-3(a)" on 11.09.2018 Notary Pravat Kumar Pradhan and Advocate Ramakanta Kanungo with prior conspiracy with complainant's husband have notarised 2 (two) deeds under coercion and pressure threatening life and liberty of the complainant which have crossed all the limits" all are false, frivolous, baseless, concocted and imaginary story and denied by the respondent.

10. That, the averments of Para-3(b) is also false, frivolous and concocted story only to harass the respondent it is false to allege, "that on 12.10.2018 when the complainant received the

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Xerox copy of 2 (two) deeds then only she knew from learned persons of her parent's residence that one deed is for dissolution of marriage with legally wedded husband of the complainant Malay Ranjan Behera mentioning no claim of complainant for permanent alimony and another deed for declaration of marriage of complainant with a person named Prafulla Nayak who is a villager and friend of complainant's husband, both deeds were made on dated 11.09.2009" is also denied by the respondent. Moreover it is conspiracy of the complainant to trap the respondent stating both deeds were made on 11.09.2008 whereas actually one deed (Agreement for dissolution of marriage) was made on 10.09.2018 and another deed (Agreement for declaration of marriage) was made on 11.09.2018.

11. That, in Para-3(b) it is false to say that both deeds were made on dated 11.09.2008 by cheating the complainant. The same is also denied by the respondent. During the period 11.09.2008 the respondent was not appointed as a Notary Public."

At Paragraph-14, the Petitioner made the following specific response:-

"14. that, the true fact is that on 10.09.2018 the complainant Sonia Behera, her legally wedded husband Malay Ranjan Behera along with the Advocate Ramakanta Kanungo came to the respondent with a D.T.P. copy of document requested this respondent to attest the said document."

The Petitioner has also the specific response through Paragraph-20 & 21:-

"20. That, the next day i.e. on dated 11.09.2018 the complainant came to the respondent along with another person by name Prafulla Nayak and the Advocate Ramakanta Kanungo with a deed of declaration of marriage made by D.T.P. before and requested the respondent to notarise the same at the presence of witnesses and the respondent did accordingly.

21. That, on dated 10.09.2018 after execution of said document, the complainant taken the document and handed over the xerox copy of the same. The respondent while tallying with the document with his register ascertained that in the said document 11.09.2018 is typographical error and advised the concerned Advocate to rectify the said typographical error. Said Advocate

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corrected the said date putting his initial signature on original deed and handed over Xerox copy of the said document. Xerox copy of the said document with this respondent and in original document said mistake is rectified. The complainant might have obtained the Xerox copy of the document before the date is corrected. The respondent is properly executed his work."

8. From the Competent Authority's Note Sheet dated 21.01.2019 as

produced in original by the learned Additional Standing Counsel, this

Court finds, this proceeding recorded the written statement of the

Petitioner being furnished by the Petitioner, placed at P.92/C and

recording therein the denial of the allegation of the complainant in detail

and the Office Note is put up for decision on inquiry. File was placed on

22.01.2019 for appropriate order then on 23.02.2019 again the file was

placed for appropriate order, there was decision on 21.01.2019 to go

ahead with inquiry as approved by the Hon'ble Minister of Law. The

Note Sheet dated 27.02.2019 discloses fixing the proceeding to

23.03.2019 at 4 P.M. On 23.03.2019 in the proceeding Record, it appears,

both parties were present. The respondent, present Petitioner prayed for

adjournment and the time Petition was allowed consequently the matter

was adjourned to 20.04.2019. Plea on behalf of the competent authority

that for the admission to the fact of attestation of two instruments

involved itself is a ground of misconduct by the Notary, this Court

observes, for the rule 8(1)(a) taken note hereinabove in paragraph no.15 it

becomes clear that the Notary is well within its authority to authenticate

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and or attest execution of any document, for the documents involved

being attested or authenticated by such Notary, if valid or invalid, remains

with the authorities other than the authorities under the Notaries Act,

1952.

9. The proceeding dated 20.04.2019 reads as follows:-

"Both parties are present through their respective Counsel and file haziras.

The petitioner files copy of certain Rules, Acts, Notifications and judgments after serving copy thereof on the other side. Copy of the written statement field by the respondent is also served upon learned Counsel appearing for the complainant in our presence.

Heard in full. Put up to be prepared subsequently."

10. The above recording has a clear disclosure that the proceeding was

concluded on that date and this proceeding nowhere discloses that there

has been any attempt for evidence or bringing in any document to be

marked in the proceeding by the complainant and here Flag A in the said

file. Report leading to bring in Annexures-1 & 2 reads as follows:-

"The instant complaint has been filed by the complainant with prayer to take appropriate action against the respondent Notary for attesting two deeds, both dated 11.9.2018 one for acknowledgement of dissolution of marriage and the other for acknowledgement of declaration of marriage.

Notice of the complaint being issued, the respondent-Notary has appeared and filed a detailed show cause denying the allegations.

Both parties being represented by their respective lawyers, were heard at length on 20.4.2019 in course of which, they reiterated their respective points of view on the dispute. Complainant's case:

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It is alleged that the complainant had married one Malaya Ranjan Behera on 17.04.2010 and out of the said wedlock a gill-

child namely, Subhalaxmi Behera was born on 17.02.2011. However since then, the husband of the complainant subjected her to serve mental and physical torture and also demanded further dowry of Rs.30,000/-. It is further alleged that on 11.09.2018, the respondent- Notary acting in connivance with the complainant's husband and his Advocate, Ramakanta Kanungo, notarised two deeds under coercion and pressure by threatening the complainant of danger to her life. On 12.02.2018, the complainant came to know that while one of the said two deeds notarized by the respondent is a purported acknowledgement of dissolution of her marriage with Malaya Ranjan Behera, the other is a purported declaration/ acknowledgement of her marriage with one Prafulla Nayak.

It is submitted by learned Counsel for the complainant that she was forced to put the signatures even though there was neither any intention on her part to dissolve her marriage with Malaya Ranjan Behera nor of entering into marriage with the said Prafulla Nayak. Both the deeds have been fraudulently prepared by taking advantage of the complainant's simplicity and ignorance. It is also stated that the so-called deed of acknowledgement of dissolution of marriage bears the date 11 th September, 2018, whereas the signature of the complainant appearing on the first page of the said deed mentions the date as 10.09.2018. Both the Notary and the Advocate identifying the parties have endorsed the date as 10.09.2018. This, according to learned Counsel for the complainant, proves the fraud committed by the Notary-Public. Learned Counsel for the complainant, by referring to the notifications issued by the Government in Law Department, further submits that it is not permissible on the part of a Notary-Public to either attest any document purporting to dissolve any marriage or to register one. On being asked as to if the complainant has approached any authority against her husband and the Advocate, Ramakant Kanungo as also the said Prafulla Nayak, it is submitted by learned Counsel that she could not do so for fear of danger to her life. However, it is submitted that a complaint has since been lodged against the said Advocate before the State Bar Council, (DP No.26/2018). Be it noted that no material has been placed to substantiate the above claim.

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Respondent's reply:-

The attestation of the two deeds in question by the respondent Notary are admitted by him in his show cause reply but it is contended that the complainant and her husband had approached him on their own volition and free will and that there was no question of his subjecting the complainant to any kind of coercion or pressure as alleged. It is submitted by learned counsel for the respondent that as required by law, the particulars of the executants of the two deeds were duly noted in the notarial register and their signatures were also obtained thereon. He further submits that the deeds in question are neither deeds of dissolution of marriage nor of registration of marriage. Accordingly to him, there is no bar in law for a Notary to attest/ notarize documents acknowledging dissolution or declaration of marriage. As regards the apparent discrepancy in date as pointed out by counsel for the complainant, it is submitted that the same is actually a typographical error which has since been rectified and corrected copies thereof are enclosed to the written statement filed in this case. Learned Counsel for the respondent further submits that law permits a Notary to attest a document acknowledging prior marriage as well as prior dissolution of the marriage and hence, he has committed no illegality by executing the deeds in question.

Finding:-

From the above narration of the facts, it is manifest that the attestation of two deeds in question by the respondent Notary is admitted. Without entering into the controversy as to whether the complainant was coerced and pressurized by her husband Malaya Ranjan Behera along with the respondent Notary and Advocate, Ramakanta Kanungo to execute the two deeds, it would be proper to first examine as to whether law permits attestation of the deeds in question by a Notary. A reference to section 8 of the Notaries Act, 1952, which deals with functions of Notaries reveals that a Notary by virtue of his office is, inter alia, empowered to "verify, authenticate, certify or attest the execution of any instrument." In the instant case, the respondent Notary has attested a deed styled as "Deed of agreement/ declaration, acknowledgement of cancellation/ dissolution of marriage." A reading of the recitals of the above deed shows that the parties voluntarily agreed in presence of local gentleman and family members to dissolve their marriage.

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It is also provided in the said deed that both parties being free from bondage of their marriage by virtue of the said dissolution/cancellation, are at liberty to marry as per their sweet will.

On a plain reading of the recitals of the deed as above, it is manifest that the same is intended to be an instrument of dissolution of marriage inasmuch as there is no legal document or other valid proof of dissolution of marriage basing upon which the so-called deed of acknowledgement of dissolution of marriage was made save and except the purported self- declaration of the parties intention to dissolve their marriage. It is not disputed that both parties are Hindus and hence, governed by the personal law relating to Hindus. The validity of the marriage of the complainant with Malaya Ranjan Behera on 17.04.10 is also not disputed. It is trite law that a valid Hindu marriage can only be dissolved in accordance with law by a decree of divorce granted by a competent Court of law. In other words, it is not open to the parties, to a marriage to voluntarily walk out of the material relationship on their own sweet will without having sanction of law. Therefore, what the so-called deed of agreement/declaration, acknowledgement of cancellation/dissolution of marriage amounts to, is nothing but recognizing/acknowledging the voluntary severance of material relationship between the concerned parties. As already stated, such dissolution, if at all, cannot be said to have taken place as per procedure established by law and hence, can have no legal sanctity whatsoever. Such being the legal position, the deed in question seeking to acknowledge an invalid act is therefore, rendered an illegal instrument. The respondent Notary being basically an Advocate himself is expected to be aware of the legal position as indicated above. However, in the instant case, not only has the respondent Notary attested the legally invalid deed of acknowledgement of dissolution of marriage but also has gone on to attest another deed, the effect of which is to acknowledge the complainant's so-called marriage with a person other than her legally wedded husband. Obviously, her earlier marriage with Malaya Ranjan Behera not having been dissolved in accordance with law, must be held to be subsisting at the time when the second deed i.e., declaration of her marriage with Prafulla Nayak was executed. As such, the said deed also has no force of law.

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Be that as it may, the Government in Law Department vide Notification No.3921 dtd. 18.3.2009 has observed that issuance of "marriage certificate" by adopting self-innovated format for issue of "Authenticate certificate of marriage" cannot be treated as a notarial act covered under section 8(1) of the Notaries Act. Thus, from the factual and legal position emanating from the above discussion, it becomes crystal clear that by lending his seal and signature to attest an invalid document, the result of which is to grant approval to an illegal act, the respondent Notary has committed gross misconduct within the meaning of the Notaries Act and Rules framed thereunder. Similarly, by attesting the so-called declaration/ acknowledgement of marriage of the complainant with another person on the same date and at the same time despite the fact that her marriage with Malaya Ranjan Behera was/is legally subsisting, also amounts to gross misconduct. At the cost of repetition, it is stated that the respondent Notary being an Advocate himself cannot take the plea that the parties had approached him on their own volition and free will and that they had willingly executed the deeds in question. Such a plea has no legs to stand in view of the discussions made herein before.

For the foregoing reasons, I am of the considered opinion that the respondent Notary has committed gross professional misconduct in attesting the deeds in question and thereby, he has himself become a party to the illegal acts said to have been committed/contemplated thereunder.

Having held as above, it is to be examined as to what action could be taken against the respondent for the same. A reference to section 10(d) of the Notaries Act, 1952 reveals that the appropriate Government may 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. Having regard to my finding as above that by attesting the deeds in question the respondent Notary has committed gross professional misconduct coupled with the fact that such act can have serious repercussion in the life of a young woman who also has a minor child, I am of the considered view that his continuance as Notary shall be detrimental to the society at large and hence, he should be held to be unfit to practice as a Notary anymore. Therefore, ends of justice would be best

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served by cancelling his certificate of practice and perpetually debarring him from Notarial Practice as provided under Rule- 13-(120- (b)- (i) of the Notaries Rules, 1956. Consequently the name of such Notary should be removed from the register as per the provision u/sec-10(d) of Notaries Act, 1952."

11. Perusal of the observation of the Competent Authority by way of

Report appears to be a decision has been taken merely on the basis that

attestation of two deeds has been admitted and then taking aid of the

provision at Section 8 of the Notaries Act, 1952, the Competent Authority

had come to observe the Notary had acted contrary to the Notification

issued by the Government of Odisha in Law Department dated

18.03.2009 observing issuance of marriage certificate by way of

authenticated certificate of marriage cannot be treated as a notarial act

under Section 8(1) of the Notaries Act and it is thus held, the Petitioner

acted contrary to the provision of the Notaries Act, 1952 and thus he

should be taken out from the empanelment resulting passing of

Annexure-1 and 2.

12. This Court here first of all finds, the documents vide Annexure-8,

the cancellation document, and Annexure-9, the deed of marriage, were

undisputedly signed on 10.09.2018 and 11.09.2018 respectively. There

cannot be any dispute to the Notification of the Government dated

18.03.2009 holding issuance of marriage certificate by adopting self-

innovative format for issue of authenticate certificate of marriage cannot

// 18 //

be treated as a notarial act. This Court here undisputedly observes, there

was no marriage certificate in the format of authenticated marriage

certificate given by the Notary. It is only attestation of some instrument.

There is clear demonstration of certificate of Notary on both the

documents. In the circumstance, this Court finds, the Law Department

Notification bearing No. 3921 dated 18.03.2009 has no application to

case at hand.

13. For perusal of documents at Annexure-8 and 9 through the

proceeding file produced before this Court appended as Annexure-1 and 2

to the complain, both in Xerox copy, this Court called for production of

the Record of the Competent Authority involving the proceeding and

whole scrutiny, four sets of Record produced by the Competent Authority

through Mr. Sonak Mishra, learned Additional Standing Counsel but

nowhere finds the original of any such documents, this Court thus finds

strange in the inquiry conducted involving such serious allegation without

even getting into the original on which the complain involved, further

even on scrutiny of these two documents either for being part of the

Competent Authority's Record or enclosed here as Annexure-8 and 9, on

whole perusal of the documents, again this Court finds, there is in fact no

Notarial Certificate given by the Notary on attestation of such

instruments. It appears, there has been only attestation of both the

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documents by the Notary. In the circumstance, this Court finds, there has

been no following up proper procedure. It is at the same time, this Court

again finds, there has been no attempt from the side of the complainant to

at least give evidence to satisfy the Competent Authority that even the

preparation of the document was at the instance of the Notary involved, in

absence of which this Court finds, there is full flaw in conducting of

inquiry by the Competent Authority and thus both the orders at

Annexure-1 and 2 found to be mechanical and in absence of application

of lawful mind, consequently not sustainable in the eye of law.

14. Now coming to consider the effect of Section 8 (1) (a) of the

Notaries Act, 1952 weighed much in the mind of the Competent

Authority, this Court finds, Sections 8(1)(a) and 8(2) of the Notaries Act,

1952 read as follows:-

"8. Functions of notaries- (1) A notary may do all or any of the following acts by virtue of his office, namely:-

(a) Verify, authenticate, certify or attest the execution of any instrument;

8(2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal."

Reading the provision at Sub-Section (a) of Section 8(1) of the

Notaries Act, there is no doubt that a Notary can verify, authenticate,

certify or and attest the execution of any instrument. In the circumstance,

this Court finds, attestation of the Notary on the instrument involved

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herein is well within the domain of Section 8(a)(1) of the Notaries Act. In

the circumstance, there is no doubt that there has been miss-application of

this provision to the case at hand.

15. This Court here also takes into account the allegation of no strict

compliance of Rule 13(12) of the Notaries Rules invalidating the actions

involved. This Court here finds, Rule 13(12) of the Notaries Rules reads

as follows :-

"13. Inquiry into the allegations of professional or other misconduct of a notary.

xxx xxx xxx (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.

Reading the above, this Court finds, the Rule contemplates two

reports but only in case the appropriate Government considers for further

enquiry to obtain a second report from the Competent Authority for its

ultimate satisfaction, which is not the case of the Petitioner herein. This

Court thus rejects the above contention of the Petitioner.

// 21 //

16. This Court here takes into account a decision of the Madras High

Court in the matter of a Pleader (AIR 1945 MADRAS 55), where a

Special Bench of Madras High Court held that mere negligence does not

amount to professional misconduct and such decision applies to the case

at hand.

17. This Court un-hesitantly holds, the impugned order at Annexure-1

and 2 remain unsustainable in the eye of law and thus sets aside the both.

18. It is profitable to mention here that for there is no

invalidation of the instruments, vide Annexure-8 & 9 by any competent

court of law, there was no occasion for entering such complain merely

because of the Notary has just attested the instruments. Further the

notification dtd.18.3.2009 comes to play only when there is issuing of

marriage certificate by the Notary. This Court here finds, the Competent

Authority lost sight of above while undertaking the required exercise and

the impugned orders are in clear non-application of mind.

19. This Court while setting aside both orders/notifications at

Annexure-1 & 2 issues a Writ of Mandamus against the Competent

Authority restoring the position of the Petitioner, as a Notary forthwith.

This order is, however, provided the period for grant of licence is not

expired in the meantime. In the event the licence period has expired, there

may not be any obstruction in the renewal of licence of the Petitioner for

// 22 //

it was revoked illegally. This Court also clarifies here that the judgment

of this Court shall not stand on the way of the Complainant, Sonia

Behera-O.P.3 herein for her pursuing other remedies available through

any other statutory forum or legal forum and the documents involved

herein, vide Annexure-8 and 9 shall be considered in such forum in its

appropriate spirit.

20. W.P.(C) No. 10000 of 2019 thus succeeds. No order as to

cost.

21. As a consequence of this judgment in setting aside the

impugned orders at Annexure-1 and 2 herein, there is no further order

necessary for involvement of the Petitioner's representation in W.P.(C)

No. 17987 of 2022, which is also disposed of accordingly.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 21st June, 2023/M.K.Rout, A.R.-cum-Sr.Secy.

Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Reason: Authentication Location: High Court of Orissa Date: 21-Jun-2023 17:26:03