The removal of a notary from the Register of Notaries under Section 10(d) of the Notaries Act, 1952, requires an inquiry into professional or other misconduct, with proper notice and opportunity to be heard, as per Rule 13 of the Notaries Rules, 1958. Additionally, a notary who applies for renewal of their certificate before the expiry of their previous certificate is entitled to such renewal under Section 5(2) of the Act.

1. With the consent of the parties this application is admitted and has been finally heard.

2. The present writ application is directed against the notification bearing No. 5995 dated 14-9-1994, a photo copy whereof has been annexed as Annexure 7, whereby and whereunder the Governor of Bihar in exercise of the power conferred under S. 10(d) of the Notaries Act (hereinafter referred to as the Act) has been pleased to remove the name of the petitioner, who was appointed as a Notary under Law Departments Notification No. 13557 dated 7-12-1984 from the Register maintained for Notaries under Sec. 4 of the Act.

3. The short relevant facts are that initially the petitioner, who was appointed as a Notary under Sec. 3 read with Rule 8(4) of the Act, vide aforementioned notification dated 7-12-1984 (Annexure 1), after the expiry of the term framed, applied for renewal and was granted the last renewal till 7-12-1993, vide Annexure 5. Before the expiry of the said period, the petitioner again applied for renewal of his certificate on 5-11-1993, vide Annexure 6. The matter somehow remained pending and finally, vide the impugned notification contained in Annexure 7, his name was directed to be removed from the Register maintained for Notaries under Sec. 4 of the -Act.

4. Learned Counsel for the petitioner has made two fold submissions. According to the learned Counsel, the impugned notification is wholly without jurisdiction and ultra vires Sec. 10(d) of the Act read with Rule 13 of the Notaries Rules, 1958 (hereinafter referred to as the Rules) framed thereunder, besides being arbitrary and mala fide. It is submitted that Sec. 10(d) contemplates for removal of names of the Notaries from the Register in case upon inquiry in the prescribed manner he is found guilty of such professional or other misconduct as, in the opinion of the Government, would render him unfit to practice as a notary.

5. The manner for such enquiry has been prescribed under Rule 13 of the Rules which, inter alia, provides for service of notice upon the Notary against whom any complaint is made under registered post with acknowledgment due. It is contended that the petitioner was never served with any notice and, in fact, no inquiry whatsoever, in terms of Rule 13 of the Rules, was ever held against the petitioner. The facts in support of the said contention have been specifically stated in paragraphs 25, 26 and 27 of the writ petition which have been answered by the respondents in paragraph- 11 of the counter-affidavit. However, there is no denial of the said facts in the aforesaid paragraph 11 of the counter-affidavit. It is, however, pleaded that after the receipt of the petition for renewal filed by the petitioner, a report and opinion was called for from the District Judge, Dhanbad, who submitted an adverse report regarding professional misconduct of the petitioner. In the concluding paragraph of the report, the District Judge stated that the petitioner is not fit to be continued as a Notary and the State Government, after considering the same, rejected the petition of the petitioner for renewal of his licence.

6. I am surprised as to how this plea has been raised in the petition when the impugned notification does not at all indicate that the application of the petitioner for renewal has been rejected. In fact, the impugned notification clearly indicates that the same has been passed in exercise of power under Sec. 10(d) of the Act. As it is not in dispute that before passing of the impugned notification, no inquiry, as contemplated under Rule 13 of the Rules has been held, in my opinion, the said notification cannot be sustained and is fit to be quashed on this ground alone.

7. Learned Counsel for the petitioner further submitted that under Sec. 5(2) of the Act, the petitioner is entitled to have his certificate of practice renewed for three years as he submitted application within due time.

8. Sub-sec. (2) of Sec. 5 of the Act provides that every such not