B.N. Mahapatra, J.
1. This writ petition has been filed for quashing/setting aside initiation of suo motu proceedings No.4/2011 and the show cause notice with statement of charges dated 20.09.2011 (Annexure-4) issued by the Competent Authority on the ground that the suo motu proceedings is an outcome of non-application of mind, improper consideration of ground reality and without authority/jurisdiction.
2. Petitioner’s case in a nutshell is that the petitioner was appointed as a Notary, Angul bearing Registration No.ON-09/2002 by the State Government and was duly authorized to practise as a Notary under the provision of Notaries Act, 1952 (for short, “Act, 1952”) and the Notaries Rules, 1956 (for short, “Rules, 1956”) for a period of 5 years which is renewable from time to time. While discharging his duty as Notary, the petitioner on 22.01.2011 had authenticated two notarial affidavits of marriage and a deed of agreement between Mamata Kumari Singh and Rajkishore Naik declaring therein that they have married to each other. The said Mamata and Rajkishore were also present when both the affidavits and agreement were presented before the petitioner by one Sambhunath Behera, Advocate of Angul Bar Association. Learned Advocate Sambhunath Behera also submitted the birth certificate of Mamata and Rajkishore. After verifying the contents of the said affidavits and agreement and both of them having identified by Advocate Sambhunath Behera, the petitioner authenticated the above affidavits and agreement in presence of two witnesses, who claimed to be the well wishers of both Mamata and Rajkishore.
3. While the situation remains thus, the mother of Mamata Kumari Singh filed a complaint case bearing ICC No. 54 of 2011 before the learned S.D.J.M., Angul protesting the said marriage on the ground that her daughter Mamata is a minor and has been kidnapped by accused- Rajkishore Naik. The learned S.D.J.M., Angul directed the Police to register the complaint as an F.I.R. and take up investigation. In course of investigation, the accused Rajkishore Naik was arrested by the Police where-after BLAPL No. 14855 of 2011 was filed before this Court for his release. This Court on 19.08.2011, while directing release of the accused kept the bail application pending and directed the learned Addl. Government Advocate to obtain instruction from the Law Department as to whether the Notaries have authority to allow the notarial affidavit evidencing solemnization of marriage even in case of minor girls without verifying the records regarding their age and whether any action can be taken against such Notaries. This Court also directed the Law Secretary to issue notices to the petitioner and one K.R. Mishra, Notary, Talcher to find out as to whether they have verified the record regarding the age of the victim in G.R. Case No.386 of 2011 pending in the Court of learned S.D.J.M., Angul before allowing Notarial affidavits of marriage between Rajkishore Naik and Mamata Kumari Singh and submit the report within 3 days. Pursuant to the order dated 19.08.2011 of this Court, the Deputy Secretary, Law Department, Government of Orissa vide their Notice dated 27.08.2011 (Annexure-2) directed the petitioner to appear before the Principal Secretary-cum-Competent Authority, Law Department on 07.09.2011 along with relevant records and documents in order to appraise as to whether the petitioner had verified any materials regarding age of victim-Mamata Kumari Singh in G.R. Case No.386 of 2011 before allowing the Notarial Affidavit of Marriage between Rajkishore and Mamata. In response to the above notice (under Annexure-2), the petitioner appeared before the Competent Authority on 07.09.2011 and submitted his explanation. Thereafter, show cause notice dated 20.09.2011 along with statement of charges under Rule 13(4-A) of the Rules, 1956 was issued in pursuance of the orders of the State Government dated 08.09.2011. The State Government has initiated a suo motu proceedings against the petitioner for authenticating two marriage affidavits evidencing solemnization of marriage without verifying the records regarding the age of the girl which constitute gross misconduct/unbecoming on the part of the Notary. The petitioner has been further noticed to show cause within 14 days from the date of receipt of the same as to why action as prescribed under law shall not be taken against him for the aforesaid misconduct. Hence, the present writ petition.
4. Mr. M.S. Panda, learned counsel appearing for the petitioner submits that initiation of the suo motu proceeding is illegal, whimsical, arbitrary and reflects non-application of mind. The petitioner has been duly appointed as a Notary since 2002 and he is governed by the Act, 1952. Under Section 8 of the said Act, the function of a Notary is to verify, authenticate, certify or to attest the execution of any instrument, administer oath or take affidavit from any person and to prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may confirm to the law of the place where such deed is entitled to operate. Hence, a Notary is a Special Officer appointed by the State Government who is authorized to administer oath and verify from the Deponent the facts/statements contained in the affidavit. As per Rule 11(8) of the Notaries Rules, 1956 a Notary may draw, attest or certify documents under his official seal including conveyance of properties and prepare will or other testamentary documents and prepare and take affidavits for various purposes for his notarial acts. Rule 13 of the said Rules deals with inquiry into the allegations of professional or other misconduct of a Notary either suo motu or on the basis of a complaint received in Form-XIII.
5. Mr.M.S.Panda further submitted that any act or duty committed/done in contravention of the provisions laid down under Section 8 of the Act, 1952 read with Rule 11 of the Rules, 1956 shall tantamount to professional or other misconduct. In the instant case, initiation of suo motu roceeding by the opposite party under Annexure-4 without any contravention of the relevant provisions of the Act and Rules by the petitioner is bad in law and as such, the same is without jurisdiction and authority. The act of the petitioner and duty in authenticating the said two marriage affidavits is squarely covered within the scope and ambit of the Act and the Rules. The petitioner at no stage while discharging his duties has contravened the aforesaid provisions. The petitioner has just authenticated the fact of marriage stated in the two affidavits. Those two affidavits were drafted by an Advocate upon instructions received from the boy and the girl. In order to verify their marriageable age, the petitioner relied upon the birth certificates and the statements of the parties under oath. The duty of the petitioner to authenticate a marriage affidavit is within his scope and capacity as a Notary and the same cannot be termed as illegal as the document authenticated by him is an affidavit stating therein that the declaration of facts of their marriage by both the parties and such affidavit cannot be termed as a Marriage Certificate issued under the provisions of the Hindu Marriage Act or Special Marriage Act wherein only a Marriage Officer is empowered to issue a Marriage Certificate. Hence, the petitioner has not in any way exceeded his limit and authority nor contravened any provisions of the Notaries Act and Rules. Therefore, Section 13 of the Act, 1952 has no application to the facts and circumstances of the present case. Mr. Panda further submitted that the proceedings initiated are not a suo motu proceedings and the same is an outcome of the order dated 19.08.2011 passed by this Court in BLAPL No.14855 of 2011. When the matter is subjudice, initiation of a suo motu proceeding without awaiting the final order of this Court, is illegal and an act of overstepping the authority by the opposite party which is mala fide and arbitrary.
6. The petitioner verified the birth certificate of Mamata Kumari Singh and Raj Kishore Naik, who were present before him and signed the affidavits after being satisfied that both the parties had attained their majority. The petitioner also inquired from the parties regarding the contents of the Affidavits to which they clarified that they knew the contents of these documents which were prepared by their Advocate according to their instructions. It was ascertained from the parties that on 22.01.2011 before coming to the petitioner both of them got married to each other in the temple of “Maa Budhi Thakurani” at Angul in presence of their well-wishers with due observance of Hindu rituals and Customs. The petitioner also tallied the documents with the Birth Certificates produced before him and found that the parties had attained their majority and were capable of swearing the Affidavits and executing the agreement. After verifying the necessary documents as well as the statements made in the affidavits and agreements and those being duly identified by an Advocate, the petitioner authenticated both the documents and made necessary entries in his Register.
7. As some Notaries had adopted a self innovated format by issuing authenticated certificate of Marriage purported to be in pursuance of Rules 11(1) and 16 of the Rules, 1956, the Law Department on 18.03.2009 had issued a letter vide Letter No.III-1-7/07 3921/L directing all the Notaries across the State not to issue Marriage Certificate which is not a function of the Notary under Section 8(1) of the Act, 1952. In this context, a Division Bench of this Court on 21.04.2009 while disposing of a writ petition bearing W.P.(C) No.19719 of 2008 had observed that a Notary does not have competence under the statute to issue marriage certificate but on the basis of the declaration made by the parties declaring themselves as husband and wife, the verification subsequently made by the Notary is very well within the jurisdiction and competence of the Notary as the verification made is in accordance with law.
8. It is submitted that in view of the above observation of this Court, the petitioner has not committed any illegality by authenticating two affidavits as the verification was caused on the basis of the declaration made by the parties and such verification is within the jurisdiction and competence of the petitioner for which he cannot be victimized. Concluding his argument, Mr. Panda, submitted that initiation of suo motu proceedings and issuance of show cause notice under Annexure-4 is illegal, unauthorized, whimsical, mala fide and not in consonance with the Act, 1952 and the same is liable to be quashed.
9. Mr. D. Panda, learned Additional Government Advocate appearing on behalf of the State-opposite party submitted that since the show cause notice is under challenge in the present writ petition, the writ petition is not maintainable being premature.
10. On the rival contentions of the parties, the questions that fall for consideration by this Court are as follows:
(i) Whether the relief sought for in this writ petition is premature?
(ii) Whether the notice to show cause with statement of charges issued pursuant to initiation of a suo motu proceedings against the petitioner are liable to be quashed?
(iii) What order?
11. Since all the aforesaid questions are interlinked, they are dealt with together.
12. The facts which are not in dispute are as follows:
Admittedly, the petitioner while discharging his duties as a Notary had authenticated two notarial affidavits of marriage and a deed of agreement executed between Mamata and Rajkishore Naik to the effect that they had married to each other. Subsequently, the mother of Mamata filed a complaint case bearing I.C.C. No.54 of 2011 before the learned S.D.J.M., Angul, protesting the said marriage on the ground that her daughter Mamta was a minor at the relevant time and was kidnapped by the accused Rajkishore Naik. The learned S.D.J.M. directed the Police to register the complaint as an FIR and take up investigation. In course of investigation, accused Rajkishore Naik was arrested by the Police and BLAPL No.14855 of 2011 was filed before this Court for his release. This Court on 19.08.2011 while directing release of the accused, kept the bail application pending and the learned Addl. Government Advocate was directed to obtain instructions from the Law Department as to whether the Notaries have authority to allow Notarial Affidavits evidencing solemnization of marriage even in case of minor girls without verifying the records regarding their age and whether any action can be taken against such Notaries. This Court also directed the Law Secretary to issue notice to the petitioner and one Kumuda Ranjan Mishra, Notary Talcher to find out as to whether they have verified any materials regarding age of the victim in G.R. Case No.386 of 2011 of the Court of learned S.D.J.M., Angul before allowing Notarial Affidavits of marriage between Rajkishore Naik and the victim Mamata Singh.
13. The Deputy Secretary, Law Department vide their notice dated 27.08.2011 (Annexure-2) directed the petitioner to appear before the Principal Secretary-cum-Competent Authority, Law Department in his Secretarial Office Chamber on 07.09.2011 along with the relevant records and documents in order to appraise as to whether the petitioner had verified any materials regarding the age of the victim-Mamata Kumari Singh before allowing the Notarial Affidavit of Marriage between Raj Kishore Naik and Mamata Kumari Singh. In response to the said notice under Annexure- 2, the petitioner appeared before the Competent authority on 07.09.2011 and submitted his explanation. The relevant paragraphs of the said explanation under Annexure-3 are quoted below:
“2. That after a thorough examination of both the documents, I ascertained that both of them got married to each other in the temple of “Maa Budhi Thakurani” at Angul in presence of their well wishers prior to swearing the affidavit and executing the agreement.
3. That on being properly identified by the learned Advocate Sri Sambha @ Sambhunath Behera of Angul Bar Association having Enrollment No.O/1679/02 of State Bar Council, Cuttack, both parties appeared before me personally and Mamata Kumari Singh sworn an affidavit whereas said Mamata Kumari Singh and Raj Kishore Naik both executed an Agreement.
4. That said learned Advocate Sri Sambhunath Behera also submitted the Birth Certificates of both parties along with the affidavit and agreement for my verification and execution.
5. That on scrutiny of both the Birth Certificates, I am fully satisfied that both parties attained their majority. Thereafter, I asked both parties regarding the contents of both the documents to which they clarified that they know the contents of those documents which are prepared by their learned Advocate Sri Sambunath Behera according to their instruction and also they stated the contents of those documents.
6. That I also tally the documents with that of the Birth Certificates and found the parties attained their majority and are quite capable of swearing affidavit and executing agreement.
7. That I am also fully satisfied that the parties are executing their respective documents while in good state of mind and on their own volition without any force or motivation from any corner. So, I put my seal and signature on both the documents and made necessary entries in my register.”
14. Subsequently, the Competent Authority issued notice of show cause along with statement of charges as provided under Rule 13(4-A) of the Rules, 1956. The said show cause notice reads thus:
“NOTICE TO SHOW CAUSE
with
Statement of Charges
(Under Rule 13(4-A), Notaries Rules, 1956,)
No.9076/L dt. 20.09.2011
Whereas in pursuance of the Orders of Government of Orissa dt. 08.09.2011, the State Government have initiated a suo-motu proceeding against Sri Rohit Kumar Behera, Notary, Angul, Regd. No.ON 09/2002 on the following Charges:
That on 22.01.2011, two affidavits were purported to have been sworn before you in your capacity as Notary evidencing solemnization of marriage between Mamata Singh and Rajkishore Naik, without verifying the records regarding their age and showing the girl as major which constitute gross misconduct/unbecoming on the part of a Notary as well.
Now, therefore, you Sri Rohit Kumar Behera, Notary, Angul are hereby noticed to show cause within 14 days from the date of receipt of this notice as to why action as prescribed under law shall not be taken against you for your aforesaid misconduct failing which the matter shall be disposed of in your absence according to law.
Sd/-
Competent Authority”
15. The above said show cause notice is under challenge. Section 8 of the Act, 1952 prescribes “Functions of the Notaries”. Rule 11(8) prescribes the transaction of business of Notary.
16. In exercise of such function, a Notary inter alia may do the following acts by virtue of his office, namely:-
(a) verify, authenticate, certify or attest the execution of any instrument;
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(e) administer oath to, or to take affidavit from, any person;
17. Sub-rule (8) of Rule 11 of the Notaries Rules, 1956 provides that
“8. The notary may—
(1) draw, attest or certify documents under his official seal including conveyance of properties;
(2) note and certify the general transactions relating to negotiable instruments;
(3) prepare a Will or other testamentary documents; and
(4) prepare and take affidavits for various purposes for his notarial acts.”
18. The functions and transactions of business by Notary as envisaged in Section 8 of the Act, 1952 and Rules, 1956 respectively cannot be done in a routine manner without application of mind; otherwise the very purpose of enacting Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 would be frustrated because sanctity is attached to the certificate of the Notary. Thus, Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 cast an obligation on Notary to apply his mind while discharging his notarial functions and transactions of business.
19. Notaries are appointed for authentication of certificates/documents. Documents duly notarized by the Notaries are accepted to be genuine documents in absence of any other material. Certificates duly authenticated by the Notaries are presented before different authorities for various purposes. It is very much necessary that before authenticating any document by putting his signature and Notarial seal, the Notary should ensure that the document is a genuine one. Sometimes, it is found that power given to a Notary is misused. Therefore, it is necessary to regulate the work of the Notaries.
20. Rule 13 of the Rules, 1956 provides for “Inquiry into the allegations of professional or other misconduct of a Notary”. According to the said provision, an inquiry into the misconduct of a Notary may be initiated either suo motu by appropriate Government or on a complaint received in Form-XIII. Admittedly, in the present case, no complaint has been received by the appropriate Government in form-XIII from any person. The inquiry has been initiated suo motu by the appropriate Government and the petitioner has been served with the notice along with statement of charges to show cause within fourteen days from the date of issuance of the notice as to why action as specified under law shall not be taken against him for the alleged misconduct.
21. Law is well settled that unless it is shown that the notice to show cause has been issued palpably without any authority of law, the show cause notice can not be quashed in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution.
22. In A.V. Venkateswaran, Collector and Customs, Bombay vs. Ramchand Sobhraj Wadhwani and Anr., AIR 1961 SC 1506 the Constitution Bench of the Hon’ble Supreme Court laid down that where there is a complete lack of jurisdiction in any officer or authority who takes the action impugned, the writ jurisdiction should be exercised.
23. The Constitution Bench of the Hon’ble Supreme Court in Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District 1, Calcutta and Anr., AIR 1961 SC 372, observed as under :-
“It is well settled, however, that though the writ of prohibition or certiorari will not be issued against an executive authority, the High Courts have power to issue, in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences.”
24. In State of Uttar Pradesh Vs. Brahm Datt Sharma and Anr., AIR 1987 SC 943, the Hon’ble Supreme Court observed as under:-
“When a show cause notice is issued to a Government servant under a statutory provision calling upon him to show cause ordinarily the Government Servant must place his case before the Authority concerned by showing cause and the Court should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law.”
(Underlined for emphasis)
25. In the case at hand, it is nobody’s case that the show cause notice has been issued by an authority without having jurisdiction to issue such notice. Moreover, the stand taken by the petitioner in this writ petition is almost similar to the stand taken in his reply letter dated 07.09.2011 (Annexure-3) submitted before the Principal Secretary to Government, Department of Law pursuant to letter dated 27.08.2011 (Annexure-2) which are disputed questions of fact and cannot be gone into by this Court in exercise of power under Articles 226 and 227 of the Constitution.
26. In view of the above, this writ petition is disposed of giving liberty to the petitioner to file his reply to the notice of show cause under Annexure-4 within two weeks from the date of receipt of a copy of this judgment. If such reply is filed by the petitioner, the same shall be considered and disposed of by the Competent Authority by strictly following the procedure prescribed under Rule 13 of the Rules, 1956.
27. With the aforesaid observations and directions, the writ petition is disposed of.
No order as to costs.