Important Point:
As per sub rule (9) of Rule 13, a Notary who is proceeded against shall have right to defend himself before the competent authority. As per sub rule (10) of Rule 13, the competent authority shall have the power to regulate his procedure relating to the inquiry in such manner as he considers necessary and during the course of inquiry, may examine witnesses and receive any other oral or documentary evidence. It would be then the competent authority shall submit his report to the government as required by sub rule (11) of Rule 13. Sub Rule (12) of Rule 13 provides that the appropriate government shall consider the report of the competent authority and if it finds that a further inquiry is necessary, it may cause such further inquiry to be made and then further report shall be considered by the government.

C.L. Soni, J.

1. By the present petition under Articles 226 and 227 of the Constitution, the petitioner has challenged the order dated 05.06.2014 passed by respondent No. 2 cancelling the certificate of the petitioner to practice as Notary and debarring him from practicing as Notary.

2. It appears that in connection with the complaint filed by one Shri Bhikhabhai Jinabhai Makwana - respondent No. 3 in Form No. 13 under the Notary Act, 1952 ("the Act"), the petitioner was issued notice dated 18.04.2013 calling upon him to explain on false affidavit made on 30.12.2009 as the complainant stated that he had not made any affirmation before the Notary, nor purchased any stamp nor even signed on affidavit and that he had also not signed in the register of the Notary nor even done any kabulatnama before the Notary. The petitioner submitted his reply dated 07.05.2013 to the said notice. It also appears that the complainant lodged the FIR being C.R. No. I-22/2011 on 26.07.2011 with Maliya-Hatina Police Station, Junagadh for the offences under Sections 177, 181, 198, 199, 200, 404, 406, 418,424, 465, 468, 471, 474, 114 and 120(B) of the Indian Penal Code against Jayantibhai Ukabhai Makwana and Amarben Ukabhai Makwana alleging making of false affidavits to get the entries certified in the revenue record.

3. As observed in the impugned order at Annexure - G, inquiry into allegations was handed over to the competent authority as per Rule 13(6) of the Notaries Rules, 1956 ("the Rules") and, thereafter, the impugned order came to be passed.

4. Learned senior advocate Mr. Shalin Mehta appearing with learned advocate Mr. Viren G. Dave for the petitioner submitted that on different grounds including that of breach of principles of natural justice, the impugned order would not stand scrutiny of law. Mr. Mehta submitted that on the charge of professional misconduct, the petitioner is permanently debarred from practicing as a Notary on the basis of so-called inquiry without giving the copy of report of the inquiry to the petitioner. He submitted that for a professional, the impugned order shall have serious impact on his reputation in the society and, therefore, though Rules do not provide for giving the copy of the report, but impugned order passed without making the petitioner aware about the conclusion in inquiry and without giving opportunity to represent against the report has seriously prejudiced the right of petitioner and, therefore, to fully comply with the principles of natural justice, requirement to supply copy of the report and to afford opportunity to represent against the report and to give hearing before making final order is required to be read in the Rules. He submitted that even considering the nature of the allegations alleged to have been proved, debarring the petitioner to practice was not called for.

5. Learned Assistant Government Pleader Mr. Swapneshwar Gautam for respondent No. 1 submitted that the Rules only postulate right of defence to the Notary in the inquiry. He submitted that nowhere it is provided in the Rules that before making the final order, the Notary is to be given a copy of the report. He submitted that when the statutory Rules do not provide for giving of the report, the petitioner could not be made entitled to get a copy of the report. He submitted that if requirement of giving copy of report is read into the Rules, it would amount to re-writing of the Rules. He submitted that the petitioner was given sufficient opportunity to represent his case before the inquiry officer, having availed full opportunity during the inquiry, he can not be permitted to make grievance that he had no opportunity to know what is considered in report. He, therefore, submitted that the petitioner could not be said to have been prejudiced in any manner for not giving him inquiry report before passing the impugned order.

6. Learned advocate Mr. Saurabh M. Patel for respondent No. 3 submitted that the petitioner as a Notary has