Judgment:
ORDER
T.S. Doabia, J.
1. The petitioner, a practising advocate, aggrieved by the action of the State of Madhya Pradesh in ordering the removal of his name from the register of Notary (Public). The copy of this order is Annexure A-5.
2. The brief facts out of which this petition arises be noticed. The petitioner is duly enrolled as an advocate. He was so enrolled on 30th of October, 1972. He was appointed as a Notary on 28th of September, 1983. This appointment was for a period of three years. Copy of appointment order has been placed on record as Annexure A-2. It is the case of the petitioner that he was duly appointed as Notary after an inquiry as contemplated by Rule 6 of the Notary Rules, 1956 framed under Notaries Act, 1952 was held. The name of the petitioner was duly notified in terms of Rule 6(2) of the Rules in the Official Gazette. Objections were invited. No objection was received within the period of 14 days. The District Judge, Morena made his recommendations and the petitioner's name was included in the register of Notaries under Rule 8 of the Rules, referred to above.
3. The further fact is that a notice dated 21st May, 1984 was sent to the petitioner on 14th June, 1984. It was stated therein that the petitioner had wrongly claimed the office of Notary and that his name was liable to be removed as he had not completed 10 years of practice. This information is purported to be based on some communication addressed by one Shri B. G. Darpe. An inquiry was initiated. The further fact is that a charge sheet, copy whereof is Annexure A-3, was served on the petitioner and the petitioner was asked to submit his reply. The petitioner did submit his reply. The plea taken by him was that his appointment as Notary was made according to law. He also stated that such an inquiry was not within the four corners of Section 10 of the Act or Rule 13 of the Notaries Rules. The plea being that only that misconduct which has been committed by a Notary after he has assumed the duties of Notary can be looked into. It was further pleaded that the Government acted on some reports submitted by the District Judge, Morena and that the report was not made available to the petitioner.
4. This writ petition came up for hearing before this Court on 2nd May, 1985. On that date the Division Bench stayed the operation of the order Annexure A-5. Even though this petition remained pending in this Court for over eleven years no reply has been filed.
5. At the outset a few provisions of the Act deserve to be noticed. Sections 5 and 10 of the Act are relevant and be noticed. These read as under:-
'5. Entry of names in the Register and issue or renewal of certificates of practice. - (1) Every notary who intends to practice as such shall, on payment to the Government appointing him of prescribed fee, if any, be entitled :-
(a) to have his name entered in the Register maintained by that Government under Section 4, and
(b) to a certificate authorising him to practise for a period of three years from the date on which the certificate is issued to him.
(2) Every such notary who wishes to continue to practise after the expiry of the period for which his certificate of practise has been issued under this section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate of practise renewed for three years at a time.'
'10. Removal of names from Register. - The Government appointing any notary may, by order, remove from the Register maintained by it under Section 4 the name of the notary if he -
(a) makes a request to that effect; or
(b) has not paid any prescribed fee required to be paid by him; or
(c) is an undischarged insolvent; or
(d) 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 practise as a notary.'
6. The question arises as to whether the petitioner's removal is in accordance with the provisions referred to above.
7. The provisions of Section 10 came to be considered before Punjab and Haryana High Court in the case of Mahabir Prashad Goyal v. The Commissioner and Secretary to Government, Haryana Administration and Justice Department, CHD and Anr., 1992 (2) Punjab Law Reporter, 509. In the above case the name of the petitioner was removed from the register of Notaries as he had failed to pay the prescribed fee. It was held that the principles of natural justice are attracted whenever an order of removal is to be made. Even where there is failure to deposit the prescribed fee, there is no automatic removal. J. L. Gupta, J. while dealing with this aspect of the matter observed as under :-
'A perusal of Section 5 shows that every notary is entitled to have his name entered in the register on payment of a prescribed fee. Further, every notary has a right to have a certificate to practise renewed for three years on payment of the prescribed fee. By virtue of Section 10, the Government is competent to order the removal of the name from the Register if the notary 'has not paid any prescribed fee required to be paid by him.' Neither Section 10 nor Section 5 prescribe or fix a date on or before which the amount has to be deposited. Though in the normal course of events to deposit should be made on or before the date on which a term of three years expires. However, the provisions of Sections 5 and 10 in their present form, cannot, in my opinion, be interpreted to be that a delay however short and bona fide would automatically result in the removal of the name from the register. A perusal of Section 10 shows that the Government can 'by order, remove from the Register...' the name of a person if he has not paid any prescribed fee. Thus the removal is not automatic. It has to be by an order. Under the provisions of the rules, the order has even to be notified. Since the removal of the name is not automatic, it becomes incumbent on the authorities concerned to consider the cause for the delay in making a deposit. It is not impossible to imagine a situation where a person waiting to make a deposit is unable to do so on account of reasons entirely beyond his control. It is possible that a particular town may be under a curfew for a number of days. It is not, unimaginable that the law and order situation may prevent a person from going out of his house. In a given case, the physical condition of the person may prevent him from making the deposit in time. In such a situation, a great hardship will occur to the individual concerned as also to the public at large if it were held that the name stands automatically removed or that every delay shall result in removal of name. Such does not appear to be the intention of the statute. Consequently, it is held that delay in making the deposit does not automatically result in the deletion of the name of the notary from the register maintained under Section 4.
6. It is equally clear that after a person's failure to make the deposit, the Government has to consider the matter and pass an order. Is this order under Section 10 to be passed mechanically or is the authority required to consider various relevant facts? The very fact that the Parliament has imposed a duty on the Government to pass an order shows that the name has not to be deleted automatically but the fact now to be considered and then an order has to be passed. There can be no proper consideration of fact unless the person concerned is given some opportunity to explain his position. This 'opportunity' may not necessarily involve a lengthy enquiry in every case. Still, an opportunity to put forth the view point must be given to the concerned. The plea taken on behalf of the respondents, namely, that the deposit has to be made before the expiry of the term and that no opportunity is required to be given does not appear to be correct. Such an interpretation would lead to very arbitrary and anomalous results.
The observations made by Punjab and Haryana High Court would apply to the facts of this case also. It is the case of the petitioner that some inquiry was held by the District Judge, Morena. In this inquiry, some witnesses were examined. This examination of witnesses was behind the back of the petitioner. It is further contended that the only question which was required to be gone into was as to whether the petitioner had completed 10 years' practice or not.
8. The petitioner has placed reliance on the order of enrolment. The copy of this order has been placed on the record as Annexure A-l. As per this, the petitioner was enrolled on 30th of October, 1972. The petitioner was appointed as Notary on 28th of September, 1983. If this be the correct position then he had completed more than ten years of practice. This aspect of the matter has not been adverted to by the respondent. Not only this, the order Annexure A-5 does not indicate as to what conduct is being taken into consideration in the matter of ordering the removal. It is not apparent as to whether the factum of non-completion of ten years' period or some other factor has been taken note of while passing the order Annexure A-5. The order effect civil rights of the petitioner in as much as the order is to be published in the Official Gazette and when this is so published in the Gazette, it would also contain recital that the petitioner is guilty of misconduct. It entails serious consequences so far as the petitioner is concerned. As no opportunity was given to the petitioner and as order Annexure A-5 does not elaborate the misconduct attributed to the petitioner, it suffers from the vice of non-speaking order as well. Annexure A-5 is quashed. However, there would be no order as to costs. The security, if paid by the petitioner, be refunded.