TMI Blog2011 (11) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... suant 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. Therefore, 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. the writ petition is disposed of. 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. - W.P.(C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of a complaint received in Form-XIII. 4. 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 proceeding 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted 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. 7. 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, submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials 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. 12. 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar 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 14. 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. 15. 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; xx xx xx (e) administer oath to, or to take affidavit from, any person; 16. 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 notari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of jurisdiction in any officer or authority who takes the action impugned, the writ jurisdiction should be exercised. 22. The Constitution Bench of the Hon'ble Supreme Court in Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District 1, Calcutta 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. 23. In State of Uttar Pradesh Vs. Brahm Datt Sharma 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 showin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
