Point of Law
Rule 13(12)(b) of the Rules, 1956 is not invalid or ultra vires the parent Act. It is permissible in law to cancel the certificate of practice and perpetually debar the Notary from practice.

JUDGMENT :

J.B.PARDIWALA, J.

1. This appeal under clause 15 of the Letters Patent Act is at the instance of the State of Gujarat (original respondent No.1) in the Special Civil Application No.1693 of 2015 filed by the respondent No.1 herein (original petitioner) challenging the order passed by the State Government dated 3rd December 2014 whereby his certificate to practice as a Notary Public came to be cancelled and he was permanently debarred from practicing as a Notary Public and is directed against the judgment and order dated 12th February 2016 passed by a learned Single Judge of this Court in the above referred writ application by which the learned Single Judge allowed the writ application preferred by the original petitioner.

2 The facts giving rise to this appeal may be summarised as under:

2.1 The respondent No.1 herein (original petitioner) entered into the roll of the Bar Council of Gujarat in December 1984. Later, he came to be appointed as a Notary Public by the Government of Gujarat, and in this regard, a certificate to practice dated 5th July 2002 was granted in favour of the original petitioner. A complaint came to be lodged against the original petitioner dated 24th March 2014 in which it was alleged that the petitioner notarized a fraudulent power of attorney dated 28th January 2008 of one Maniben in favour of one Ramdevbhai Sukabhai Modhvadiya. The complainant alleged that the said Maniben impersonated his mother who had died on 8th March 1989 and even the succession of entry of heirs was certified on 7th July 2002. A notice dated 3rd May 2014 came to be thereupon issued to the petitioner by the Deputy Secretary, Legal Department calling upon the petitioner for his explanation. The petitioner filed his written reply dated 12th May 2014. The inquiry officer, in his inquiry report dated 21st November 2014, concluded that the petitioner had committed a serious misconduct under Section 10 (d) of the Notaries Act, 1952 (for short, “the Act, 1952”), which warranted imposition of any of the penalties stipulated in the sub-rule (12) of Rule 13 of the Notaries Rules, 1956 (for short, “the Rules, 1956”). The competent authority, accordingly, remitted the matter with his report to the appropriate government namely the State Government for passing appropriate order. The State Government passed the following order dated 3rd December 2014:

“Government of Gujarat

Legal Department

Sr. No. NTR – 102014-413-1215-A

Sachivalay, Gandhinagar.

Date: 03 – Dec – 2014

Notification :-

Under the provisions of the Notary Act – 1952 and the rules framed thereunder, Shri Karimbhai D. Peerzada, Advocate has been appointed as the Notary Public for the Taluka and District Porbandar vide the Notary Registration number 412/2002 dated 05/07/2002.

The Complainant viz. Shri Rajan Damodar Killakare had filed a complaint, alleging misconducts pertaining to the profession of the Notary under Rule – 13 of the Notary Rules – 1956, against the Notary Shri Karimbhai D. Peerzada. With regard to the complaint, the government had handed over the investigation to the competent authority. After considering the oral as well as written evidences submitted by the complainant and the Notary, the competent authority has submitted report to the government dated 21/11/2014, which is to be considered as part of this notification.

As per the report submitted to the government by the competent authority, it has been established on the basis of the documentary evidences that though the complainant’s mother Maniben Prabhudas (Maniben Damodar) had died on 19/02/1989, Maniben Prabhudas had remained present before the Notary on 28/01/2008 and executed the disputed power of attorney. Such a general power of attorney had been prepared fraudulent and the notary did not obtain proper identification proofs of Maniben Prabhudas and the witness Kamleshbh