Important Point
Delinquent Notary has to be given opportunity to defend on proposed penalty.

N.V. ANJARIA, J.

1. The petitioner has challenged order dated 3rd December, 2014 whereby his certificate to practice as Notary came to be cancelled and he was permanently debarred from practicing as Notary.

2. The petitioner entered the roll of the Bar Council of Gujarat in December, 1984, came to be appointed as Notary by the Government of Gujarat and granted certificate to practice dated 05th July, 2002. A complaint came to be lodged against the petitioner on 24th March, 2014 in which it was alleged that the petitioner notarized a power-of-attorney dated 28th January, 2008 of one Maniben in favour of one Ramdevbhai Sukabhai Modhvadiya, which was a fraudulent document. The complainant stated that said Maniben impersonated his mother who had died on 08th March, 1989 and even succession of entry of hers was certified on 07th July, 2002. A notice dated 3rd May, 2014 came to be thereupon issued to the petitioner by the Deputy Secretary, Legal Department calling for petitioner’s explanation. Petitioner filed written reply dated 12th May, 2014. The competent authority in his inquiry report dated 21st November, 2014 concluded that the petitioner-Notary had committed a serious misconduct under Section 10(d) of the Notaries Act, 1952 which warranted imposition of any of the penalties mentioned in sub-rule (12) of Rule 13 of the Notaries Rules, 1956. The competent authority remitted the matter to the appropriate government, namely, the state government for passing appropriate order. Impugned order resulted, culminating into the present writ petition challenging the same.

3. Contesting the petition, one Mr. D.M. Bhabhor holding the post of Under Secretary, Legal Department, Government of Gujarat, filed affidavit-in-reply on behalf of respondent No.1, inter-alia to submit that the penal order against the petitioner was after providing ample opportunities of being heard to the petitioner. It was stated that the disputed document in the name of Maniben Prabhudas Kanojiya was notarized on 28th January, 2008, whereas said Maniben had expired much prior to the said date, which suggested that the petitioner did not take due care in identifying the person concerned and without verification of identity proof, the notarization was done. As to the contention raised in the petition that the decision of imposing penalty on the petitioner was not by the appropriate government as per the Rules, it was submitted in the affidavit-in-reply that the Under Secretary, Legal Department was only communicator of the decision which was taken by the state government and that the Under Secretary played no role in taking final decision against the petitioner.

3.1 Private respondent No.2 also objected to the prayers of the petitioner by filing affidavit-in-reply contending that his mother Maniben was already no more and even succession certificate was issued, but some other old lady was presented before the petitioner and the petitioner without identifying, notarized the document which is a power-of-attorney given in the name of Maniben. It was contended that the lapse on part of the petitioner is too serious to be treated with any leniency, that the fraudulent power-of-attorney resulted into transaction of sale of property and the petitioner played a vital role in attesting the fraudulent document which was used for transfer entry in the revenue records. It was submitted that the entire fraudulent conduct was related to an incident wherein a noted biotech scientist one Rajan Damodar Killakar was attempted to be murdered for grabbing of various properties.

4. Heard learned advocate Mr. Mehul S. Shah with learned advocate Mr. Jay Thakkar for the petitioner, learned Assistant Government Pleader Ms. Jyoti Bhatt for respondent No.1 and learned advocate Mr. Vilas Goswamy for private respondent No.2.

5. Before adverting to deal with the submissions of the parties, it would be useful to consider the relevant statutory provisions. Section 10 of the Notaries Act, 1952,