Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERVENTION APPLICATION (ST) NO. 18348 OF 2021
IN
WRIT PETITION NO. 4947 OF 2021
Samina Arif Khan alias Dhanlaxmi Chandrakant Devrukhkar
Age : 52 years, Occupation : Housewife, Adult,
Indian Inhabitant, residing at B-204, Sanghavi Complex,
Pearl CHS Ltd., Naya Nagar, Near Ganga Complex,
Mira Road (East), Mira Bhayander, Thane, Mira Road,
Maharashtra 401 107. … Applicant
In the matter between :
Dhanlaxmi Chandu Devrukar alias Samina Arif Khan,
Age … years, Occupation : Housewife, Indian Inhabitant,
residing at 502, A-Wing, National Avenue CHS Ltd.,
Akurali Road, Kandivali (East), Mumbai – 400 101. … Petitioner
Versus
1. The Town Planning/Land Acquisition Officer,
Malad, Mumbai District, Administrative Building,
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5 Floor, Natakwala Lane, S.V. Road, Borivali (East),
Mumbai – 400 095 through the Government Pleader,
Appellate Side, High Court, Bombay.
2. The Deputy Director of Land and Survey Record,
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DD Building, 1 Floor, Old Tax Building, Fort,
Mumbai – 400 023 through the Government Pleader,
Appellate Side, High Court, Bombay.
3. The District Supt. Of Land and Survey Record,
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Administrative Building, 10 Floor,
Government Colony, Bandra (East),
Mumbai – 400 051 through Government Pleader,
Appellate Side, High Court, Bombay.
4. Hon’ble Revenue Minister, Mantralaya,
Fort, Mumbai 400 023 through the
Government Pleader, Appellate Side,
High Court, Bombay.
5. The Mumbai Pradesh Congress Committee,
Veerkope, Vakhadi, i.e. Village Chinchivali,
Bandar Road, Malad (West), Mumbai – 400 064.
6. Sardar Vallabhbhai Patel Academy Trust,
Vittal Sadan, Congress Committee, V.P. Road,
Fort, Mumbai – 400 004.
7. Brahut Bharti Samaj Trust Devrukhwadi Wadi,
Chinchivali, Bandar Road, Malad (West),
Mumbai – 400 064. … Respondents
WITH
CRIMINAL APPELLATE JURISDICTION
SUO-MOTU CONTEMPT PETITION NO. 1 OF 2021
IN
INTERVENTION APPLICATION (ST) NO. 18348 OF 2021
IN
WRIT PETITION NO. 4947 OF 2021
High Court on its own Motion ... Petitioner
Versus
1. S.M. Naqvi
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Advocate and Notary, Government of India,
49, Roshan Estate, Jari Mari, Kurla (West),
Mumbai – 400 070
2. Sandeep Sadanand Dharne,
202, Laxmi Palace, Cross Road No.3,
Liberty Garden, Malad (West),
Mumbai – 400 064. ... Respondents
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 23929 OF 2021
IN
COMMERCIAL APPEAL (L) NO. 23906 OF 2021
IN
INTERIM APPLICATION (L) NO. 23015 OF 2021
IN
EXECUTION APPLICATION (L) NO. 19230 OF 2021
IN
COMMERCIAL ARBITRATION PETITION NO. 20 OF 2020
1. M/s. Sanskriti Developers,
A partnership firm, registered under the
Indian Partnership Act, 1932, having office at
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21, 13 Khetwadi Lane, Mumbai – 400 004.
2. Mr. Vijay Jain,
having its office at 207, Mantri Building,
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JSS Road, Girgaum, Mumbai – 400 004.
3. Hitesh Bohra,
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Having office at 21, 13 Khetwadi Lane,
Mumbai – 400 004.
4. M/s. D.R. Developers,
A proprietary concern through its Proprietor,
Mr. Sailesh Vanigota, having its office at 207,
Mantri Building, JSS Road, Girgaum,
Mumbai 400 004. … Applicants/
Original Appellants
In the matter between :
1. M/s. Sanskriti Developers,
A partnership firm, registered under the Indian
Partnership Act, 1932, having office at 21,
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13 Khetwadi Lane, Mumabi – 400 004.
2. Mr. Vijay Jain,
having its office at 207, Mantri Building,
JSS Road, Girgaum, Mumbai – 400 004.
3. Hitesh Bohra,
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Having office at 21, 13 Khetwadi Lane,
Mumbai – 400 004.
4. M/s. D.R. Developers,
A proprietary concern through its Proprietor,
Mr. Sailesh Vanigota, having its office at 207,
Mantri Building, JSS Road, Girgaum,
Mumbai 400 004. … Appellants/
Respondents
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Versus
M/s. Mandal Infrastructure Pvt. Ltd.
A private limited company having its Office at
342, New Corporate Plaza, Ramchandra Lane,
Malad (West), Mumbai – 400 064. … Respondent
…......
Mr. Ashok Dhanuka alongwith Mr. Aiqan Memon instructed by W3Legal, LLP for the
Applicant in IAST 18348 of 2021.
Mr. Rohan Barge, for the Petitioner in WP 4947 of 2021.
Mrs. S.D.Vyas, ‘B’ Panel Counsel for the State in WP 4947 of 2021.
Mrs. Aruna Pai, Public Prosecutor, for the State in SMCP 1 of 2021.
Mr. D.P.Singh, for Union of India.
Mr. Sarif S. Khan, for Contemnor No.1 in SMCP 1 of 2021.
Mr. Mohd. Muqim Khan, for Contemnor No.2 in SMCP 1 of 2021.
Mr. Somnath Anchan for the auction purchaser.
Dr. Birendra Saraf, Senior Advocate alongwith Mr. Karl Tamboly, Mr. Satchit Bhogle
instructed by Mr. Khan Javed Akhtar, for the Appellant.
Mr. Sharan Jagtiani, Senior Advocate alongwith Ms. Surabhi Agrawal, Mr. Kashish
Mainkar, Ms. Treesa Ann Benny instructed by Wadia Ghandy and Co., for the
Respondent in Appeal (L) NO.23906 of 2021. .
Mr. D.N.Kher, Court Receiver with Mr. A.B.Malwankar, Section Officer, present.
Mr. Nausher Kohli, Amicus Curiae alongwith Mr. Akash Agarwal present.
…......
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
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DATE : 18 FEBRUARY, 2022
JUDGMENT (PER : S.J. KATHAWALLA, J.) :
1. In Intervention Application (ST) No.18348 of 2021 taken out in Civil
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Writ Petition No.4947 of 2021, a Praecipe dated 29 September, 2021 was received
from Advocate Shri A.R.Dhanuka on behalf of the Applicant – Samina Arif Khan @
Dhanlaxmi Chandrakant Devrukhkar (‘Samina’) to place the Intervention Application
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for urgent hearing and orders since according to Samina, Advocate Shri Rohan Barge
and Notary - Shri S.M.Naqvi alongwith an unknown person have filed Writ Petition
No.4947 of 2021 before this Court in the name of Samina, seeking reliefs against the
Town Planning / Land Acquisition Officer, Malad and Others, without her consent,
knowledge and authority, thereby committing offences of cheating, fraud,
impersonation and forgery against her and also this Court.
2. In view of the serious allegations made by Samina, the captioned
Intervention Application along with Writ Petition No.4947 of 2021 were placed on
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Board before this Court on 4 October, 2021. On that day, the Advocate representing
– Samina reiterated that Samina had not given any instructions to Advocate Rohan
Barge to file the captioned Writ Petition. It was also submitted that after Samina’s
Advocate obtained a certified copy of Writ Petition No. 4947 of 2021 filed in her name
by Advocate Rohan Barge, she noted that the signature after the prayer clause and
under the verification clause at pages 11 and 12 respectively of the Writ Petition, are
not hers. We therefore passed an Order directing Advocate Rohan Barge to remain
present before us on the same day at 2.30 p.m. Since Advocate Rohan Barge was not
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present at 2.30 p.m., we directed him to remain present in Court on 5 October, 2021,
at 2.30 p.m.
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3. On 5 October, 2021 Advocate Rohan Barge was present before this
Court along with one Mr. R.L.Agawane, a registered clerk and one Shri Sandeep S.
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Dharne. An Affidavit of Shri Sandeep Dharne was tendered in Court. In the said
Affidavit, which was admittedly drafted by Advocate Rohan Barge, it was stated that in
the month of January, 2020, Shri Dharne had approached the Registered Clerk Shri
Agawane, who introduced him to Advocate Rohan Barge for filing the above Writ
Petition before this Court ; that in the meeting with Advocate Rohan Barge, Shri
Dharne had appraised him of all the facts in the matter, including the fact that Shri
Dharne had with him the Power of Attorney executed in his favour by Samina in the
year 2005 ; that he (Shri Dharne) had contacted Samina and sought her confirmation
to file the captioned Writ Petition before this Court ; that after the said Writ Petition
was drafted by Advocate Barge, Shri Agawane, Registered Clerk, called Mr. Dharne
“for presenting the client before the High Court for Notary purpose.” Shri Agawane
thereupon read over the contents of the Writ Petition and the said Writ Petition was
handed over to him (Shri Dharne) by Shri Agawane “for notary purpose for
identification” ; that since Samina was hospitalised, Shri Dharne signed the Writ
Petition on her behalf and the said fact was not disclosed to Advocate Barge or Shri
Agawane ; that he was having power of attorney of Samina “for filing all documents in
Revenue Departments and Government purposes and also for attending all Courts of
Law” ; that he inadvertently signed the Writ Petition on behalf of Samina ; that
Samina has filed the above Writ Petition recording the facts which are incorrect only
because she has not paid the legal fees for the matter which Shri Dharane attended on
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her behalf in revenue court’s and therefore, “he do not have prime role in the Writ
Petition.”
4. We therefore, asked Shri Dharne to produce the original Power of
Attorney, or a copy thereof executed by Samina in his favour. He informed the Court
that he is not having the original or the copy of the same “at present”. However, he
admitted that under the said Power of Attorney which was executed by Samina in his
favour, he was to represent Samina only in revenue matters and was not given the
power to file Writ Petition No.4947 of 2021.
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5. Samina who was also present before this Court on 5 October, 2021
along with her Advocate, informed the Court that she was not hospitalized at the
relevant time as alleged and that at no point of time was she informed by Shri Dharne
that the above Writ Petition was to be filed, or has been filed before the Court on her
behalf.
6. Since Shri S.M.Naqvi, Notary, Government of India, has put his
endorsement at page No.12 of the Writ Petition confirming that Samina has affirmed /
verified the above Writ Petition before him, we directed Shri Naqvi to remain present
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before this Court on 6 October, 2021 at 10.30 a.m., along with the Notary Register
No.437 wherein he has made entry with regard to the document that he has notarized
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on 11 February, 2020 under Serial No.478 Page No.41.
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7. On 6 October, 2021 the Notary - Advocate S.M.Naqvi appeared in the
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morning session and sought time to place his Notary Register before the Court at 2.45
p.m. Upon him producing the Notary Register at 2.45 p.m., we initially showed him
the Verification Clause at page 12 of the Writ Petition, whereunder the signature of
Samina appears. After the signature of Samina, Advocate Naqvi has put his rubber
stamp “BEFORE ME” and thereunder Shri Naqvi has put his signature and has
written the date ‘11.2.2020’ in his own handwriting. Below his signature and date,
Shri Naqvi has affixed his rubber stamp describing him as ‘Notary – Govt. of India’
and his address thereunder. When we asked the Notary Shri Naqvi whether Samina
was present before him and whether she had put her signature in his presence, the
Notary – Shri Naqvi answered in the affirmative. We therefore, asked him to show the
signature of Samina in the Notary Register produced by him. Thereupon, he made
one more false statement that she had signed the Verification Clause before him, but
his clerk had by mistake taken the signature of Shri Dharne in the Notary Register.
When we warned Shri Naqvi of taking stern action against him for making false
statements before this Court, he admitted that he has never met Samina. He stated
that the Verification Clause in the Writ Petition was signed in his presence by Shri
Dharne as ‘Samina A. Khan’. When we asked him as to how he allowed Shri Dharne to
sign as ‘Samina A. Khan’ and how he has put his (Shri Naqvi’s) rubber stamp and
signature verifying that Samina A. Khan has signed before him, he stated that he has
done it in good faith. When we asked him how much he charged for this
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unprofessional conduct, he informed the Court that he has charged Rs. 60/-.
However, Shri Dharne informed the Court that he had paid Shri Naqvi approximately
Rs. 1000/- to Rs. 1500/- for the same.
8. Since Shri Naqvi, as recorded hereinabove, and also in our Order dated
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6 October, 2021, has deliberately made incorrect and false statements knowing the
same to be false, thereby scandalizing the authority of this Court and interfering with
the administration of justice, we were satisfied that there exists a prima facie case for
issuance of a Show Cause Notice for considering action under Article 215 of the
Constitution of India and the Contempt of Courts Act, 1971 against Shri S.M. Naqvi,
Advocate and Notary. The Registry was therefore, directed to issue Show Cause
Notice to Shri S.M. Naqvi (Advocate and Notary) under Rule 9 of Chapter XXXIV of
the Bombay High Court Appellate Side Rules, 1960 made returnable on 21st October,
2021.
9. Since Shri Dharne had filed Writ Petition No.4947 of 2021 in the name
of Samina against the Town Planning / Land Acquisition Officer and others and had
affirmed the same in presence of Shri S.M. Naqvi, Advocate and Notary,
by signing the same as ‘Samina A. Khan’, in our view Shri Dharne had scandalized the
authority of this Court; interfered with the due course of judicial proceedings
and obstructed the administration of justice. We were therefore satisfied that there
exists a prima facie case for issuance of notice for considering action under Article 215
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of the Constitution of India and the Contempt of Courts Act, 1971 against Shri
Sandeep Dharne. The Registry was therefore directed to issue Show Cause Notice to
Shri Sandeep Dharne under Rule 9 of Chapter XXXIV of the Bombay High Court
Appellate Side Rules, 1960, made returnable on 21st October, 2021. A copy of the
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Order dated 6 October, 2021 recording all the above facts, was directed to be
forwarded to Shri. Anil Singh, Additional Solicitor General (Western Region), and the
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matter was adjourned to 21 October, 2021.
10. Accordingly, show cause notices were issued to Advocate Naqvi as well
as to Shri Dharne and Suo Motu Criminal Contempt Petition No.1 of 2021 was
registered against them.
11. Pursuant to the above Order, Shri Sandeep Dharne has filed two
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Affidavits both dated 17 November, 2021. Though he has tried to shift the blame on
Samina and has tried to allege that Samina had executed a Power of Attorney in his
favour to take steps qua the property mentioned in the said Power of Attorney, he was
aware of the fact that though Writ Petition No.4947 of 2021 is filed by him on her
behalf, in fact a perusal of the Power of Attorney indicates that Samina had certainly
not authorized Shri Dharne to file any Writ Petition in this Court. Since Shri Dharne
has not produced any document/s to indicate that Samina was at the relevant time in
hospital, and that he had therefore obtained her oral consent, as alleged by him, we do
not accept the said statement made by Shri Dharne, more so in light of the fact that
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Samina has herself denied before this Court on 5 October, 2021, that she was in
hospital at the relevant time. We are therefore, satisfied that Shri Dharne has by
signing the Writ Petition in the name of Samina made an attempt to mislead the
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Court. In any event, since he has in paragraph No.10 of the Affidavit dated 17
November, 2021, tendered an unconditional apology, interalia stating that, “I hereby
tender my unconditional apology for my conduct of signing the Petition as Samina
before the Notary Public and submitting the said Petition without even informing the
Advocate on Record who has filed the Petition in this Court in good faith”, we accept
his unconditional apology and direct him to pay Rs.2,000/- to the Maharashtra State
Legal Services Authority within four days from the date of uploading this Order. The
Power of Attorney executed by Samina in favour of Shri Dharne stands revoked with
immediate effect and Shri Dharne undertakes not to act on the said Power of Attorney
at any point of time in future.
12. As far as the Notary Shri Naqvi is concerned, as stated hereinabove, he
on more than one occasion made statement before the Court knowing the same to be
false, which statements he later corrected. We are satisfied that Shri Naqvi, Advocate
and Notary did make an attempt to mislead this Court and corrected his statements
only after he was warned of stern action. However, since in his Affidavit he has stated
that he is 72 years old and is tendering an unconditional apology and will be careful in
future, we accept the unconditional apology tendered by the Notary Shri S.M. Naqvi.
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He shall also pay Rs.2,000/- to the Maharashtra State Legal Services Authority within
four days from the date of uploading this Order.
13. Though we have not issued Notice to Advocate Rohan Barge, we have
pointed out to Advocate Barge that before preparing the Writ Petition in the name of
Samina, on the representation of Shri Dharne that he holds a Power of Attorney of
Samina in his favour, it was his duty to call for the said Power of Attorney allegedly
executed by Samina in favour of Shri Dharne and verify the statement made by Shri
Dharne. To that extent he has been negligent. Advocate Rohan Barge has tendered his
unconditional apology and has assured the Court that there will be no such lapse on
his part in future whilst dealing with any litigants. We accept the unconditional
apology tendered by Advocate Barge and warn him of stern action in the event of such
conduct being repeated in future.
14. In view of the above, Shri Dharne seeks to withdraw the above Writ
Petition No. 4947 of 2021. The Writ Petition is therefore disposed of. Intervention
Application (ST) No.18348 of 2021 taken out by Samina also stands disposed of. Suo
Motu Criminal Contempt Petition No.1 of 2021 also stands disposed of. However,
Samina will be at liberty to take out appropriate proceedings against Shri Dharne,
which if taken out will be decided on its own merits without being influenced by this
Order.
15. Whilst we were dealing interalia with the aforesaid unprofessional
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conduct of the Notary Shri S.M.Naqvi, one more matter pertaining to the
unprofessional conduct of a Notary, i.e. Advocate Shri Sandeep Shah was moved
before us through Interim Application (L) No.23929 of 2021 in Comm. Appeal (L)
No.23906 of 2021. In this case/matter, Comm. Appeal (L) No.23906 of 2021 was
filed by Advocate Khan Javed Akhtar. The Appeal was filed and notarized prior to the
Order impugned in the Appeal being uploaded by the Learned Single Judge. In other
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words, the impugned Order was passed on 12 October, 2021 and was uploaded and
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made available to the parties only on 13 October, 2021. However, Advocate Khan had
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prepared the Appeal on 12 October, 2021 stating therein that the impugned Order
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dated 12 October, 2021 is annexed as Exhibit A to the Appeal, and asked
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Partner/Director of the Appellant to get the appeal affirmed before the Notary on 12
October, 2021. Mr. Vijay Jain, the Partner/Director of the Appellants has informed us
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that he got the Appeal notarized on 12 October, 2021 from the Notary - Shri Sandip
Shah, since Advocate Khan Javed Akhtar had asked him to do so on 12th October,
2021. He also informed the Court that he had drawn the attention of Shri Sandip Shah
to the fact that the impugned Order was not uploaded / made available and therefore,
Exhibit ‘A’ was not annexed to the Appeal. Despite the above, Shri Sandip Shah
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notarized the above Appeal on 12 October, 2021 with an incorrect endorsement in his
own handwriting : “Ex-A to E are annexed hereunder. Sd/- Sandip Shah,
Advocate & Notary” . Upon noting the aforesaid mischief, we asked Advocate
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Akhtar as to why he asked his client to get the Memo of Appeal notarized before
uploading of the impugned Order by the Learned Single Judge, to which Advocate
Akhtar had no answer. We therefore, directed Shri Shah, Advocate & Notary to
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remain present before this Court along with his Notary Register on 21 October, 2021
at 04.30 p.m.
16. Accordingly, Shri Shah, Advocate & Notary remained present before us
along with his Notary Register. The Notary Register showed that he has notarized the
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above Appeal on 12 October, 2021. When we asked him as to why he has made an
endorsement in his own handwriting at internal page 15, running page 10 of the
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Appeal on 12 October, 2021, stating that “Ex-A to E are annexed hereunder. Sd/-
Sandip Shah, Advocate & Notary” , when Exhibit ‘A’ (the impugned Order) was
uploaded / made available only on 13th October, 2021, he informed the Court that
since in the body of the Appeal prepared by Advocate Akhtar, Exhibits ‘A’ to “E’ were
mentioned, he was misguided and made the said endorsement, “Ex-A to E are
annexed hereunder Sd/- Sandip Shah, Advocate & Notary.” When we pointed out
to Shri Sandip Shah that the explanation given by him to this Court is false and
untenable on the face of the document since when he has put his stamp and signature
on each of the Exhibits, i.e. Exhibits ‘B’ to ‘E’, he could not have missed the fact that
Exhibit ‘A’ is not annexed to the Appeal, he admitted having given false explanation
and expressed regret for his conduct.
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17. By our Order dated 21 October, 2021, passed in Interim Application (L)
No.23929 of 2021, after recording the aforesaid conduct of Advocate Khan and Shri
Sandip Shah, Advocate and Notary, we have interalia recorded as under :
“8. In view of the above, it prima facie appears that Advocate – Khan
Javed Akhtar appearing for the Appellant, as well as Shri Sandip A. Shah,
Advocate & Notary, are not only guilty of unprofessional conduct but they
have made statements before the Court which are false and incorrect to their
knowledge with a view to mislead the Court. Advocate – Khan Javed Akhtar
and Shri Sandip A. Shah, Advocate & Notary shall therefore file their
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respective Affidavits on or before 27 October, 2021 explaining why action
should not be taken against them for their afforested conduct.
9. The Court Receiver, Bombay High Court, shall take possession of
the flats as ordered by the Learned Single Judge and put his locks on the said
flats. Needless to add that the said exercise shall be carried out subject to
further orders passed by this Court on the adjourned date and / or any other
date when the above Appeal is taken up for admission / hearing.
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10. Stand over to 27 October, 2021 to enable the Advocate – Khan
Javed Akhtar appearing for the Appellant as well as Shri Sandip A. Shah,
Advocate & Notary to file their respective Affidavits.
11. A copy of this Order shall be forwarded to the Learned ASG Shri
Anil Singh.”
18. Accordingly, Advocate Javed Akhtar Khan filed his Affidavit, paragraph
No.10 of which is reproduced hereunder :
“10. I say that I hereby tender my unconditional apology and
unqualified apology for the said mistake of not mentioning in paragraph 2 of
the Appeal Memo that the copy was unavailable at the time of Notary. I have
hereinabove explained the circumstances in which the said error has taken
place. I had not intended to file any false information or to tamper with the
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proceedings or court proceedings or notary proceedings with malafide
intentions or with ulterior motive. I say that the said mistake is not intentional
to gain anything nor I have any interest in the matter to gain unlawfully. I say
that henceforth I will be taking extra care and will be extra cautious in such
matters. I say with folded hands that I am the sole bread earner of my family
consisting of wife and two kids who are studying in class X and Class VI
respectively therefore, request this Hon’ble Court for not action to be taken
against me.”
19. Advocate Sandeep Shah has also filed an Affidavit, paragraph 10 of
which is reproduced hereunder :
“I say that I hereby tender my unconditional and unqualified apology for the
said mistake committed by me at page No.10 or page No.136 or page No.138
of the Appeal memo and I have hereinabove explained the circumstances in
which the said error has taken place. I had not intended to file any false
information. I say that henceforth will be taking extra care or will be extra
cautious of the said mistake committed by me. I say that I am the only bread
earner of my family. I say that the mistake being unintentional therefore, this
Hon’ble Court should have a mercy on me and family members. I say that I
undertake to this Hon’ble Court that I shall not commit such mistake / errors
in future. I say that I am having no source of income other than this. I say
that all my children at studying and any adverse orders being passed shall
impede their education. I say that I am suffering from high diabetes and also
from hypertension. ……….”
20. In view of the above, we accept the unconditional and unqualified
apology tendered by Advocate Javed Akhtar Khan, as well as Notary Shri Sandeep
Shah. However, they shall also pay Rs.2000/- each to the State Legal Aid Fund,
Maharashtra State Legal Services Authority within four days from the date of
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uploading this Order.
21. In the above Appeal, the Court Receiver was directed to put up the office
premises of the Appellants for sale. The Appellants have in order to avoid sale of the
same, without prejudice to their rights and contentions, deposited an amount
aggregating to Rs.4.40 Crores with this Court, i.e. Rs.4 Crores with the Court
Receiver, High Court, Bombay, and Rs.40 Lakhs with the Prothonotary and Senior
Master of this Court. The Court Receiver will transfer the amount deposited with
him to the Prothonotary and Senior Master of this Court. The Respondent – Mandal
Infrastructure Pvt. Ltd. may move the Single Judge in execution proceedings seeking
withdrawal of the amount deposited by the Appellant, or part thereof which
Application will be heard on its own merits. The Execution Application/proceedings
shall be heard and disposed off by the Learned Single Judge at the earliest and all
contentions of the parties are kept open. The above Appeal is accordingly disposed of.
Interim Application (L) No.23929 of 2021 also stands disposed of. The Show Cause
Notice issued to Shri Vijay Jain for putting up a new door in front of the original door
of the office with a view to cover the Court Receiver’s board put up on the original
door, stands discharged. The Court Receiver’s Report stands disposed off.
22. In view of the above unprofessional manner in which the Advocates
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appointed as Notaries are functioning, by our Order dated 26 October, 2021 we
recorded that we would like to make certain suggestions/recommendations qua
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changes required in the Notaries Act, 1952 and to the Rules framed thereunder, as also
the Circulars issued from time to time, so as to avoid any mischief being played by any
Advocate, Notary or a party, in the course of getting any document notarized. We
therefore appointed Advocate Nausher Kohli as Amicus Curiae, to assist the Court in
its aforestated endeavour.
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23. Mr. Kohli, Learned Advocate has submitted his Report dated 9
December, 2021. We have perused the Report submitted by Mr. Kohli. Mr. Kohli has
taken us through the ancient and distinguished history of Notaries emanating from the
Roman Empire. We note that this Court in Prataprai Trumbaklal Mehta vs Jayant
1
Nemchand Shah and Anr. , has held that Notaries enjoy high status throughout the
country and our Courts take judicial notice of the seal of a Notary. Significant weight
is attached to a document attested by a Notary. Undisputedly, the office of a Notary
assumes immense legal significance.
24. The President of India granted assent to the Notaries Act 1952 on
August 9, 1952 (“Act”) . The Act came into force on December 14, 1956. Prior to the
passing of the Act, the Government of India was empowered to appoint Notaries
Public under Sections 138 and 139 of the Negotiable Instruments Act, 1881, for the
functioning of Notaries. Prior to the passing of the Act, the Master of Faculties in
England would appoint Notaries Public in India for performing notarial functions.
25. In exercise of the powers conferred by Section 15 of the Act, the Central
1 1991 SCC OnLine Bom 205
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Government has framed the Notaries Rules, 1956 (“Rules”) .
26. Notaries are governed by the Act and the Rules. In addition, in order to
curb instances of mischief, the Government of Maharashtra, Law & Judiciary
Department, had issued Circulars dated December 18, 2001 and January 25, 2008
(“Circulars”) .
27. Despite the Act and Rules having been enacted approximately 70 years
ago, there have till date, not been any major amendments / reforms introduced to the
Act and Rules. Illustratively, a Notary is entitled to charge travelling allowance by road
at the rate of Rs.20/- per kilometre. This figure was inserted by an amendment in
2014, i.e. 7 years ago. The cost of fuel has certainly increased over the past 7 years.
Similarly, the fees payable to a Notary for undertaking a notarial act was also last
amended in 2014.
28. Amongst the various functions of a Notary, perhaps the most important
is that of attesting signatures on documents. This is aimed at reducing fraud /
misrepresentation. However, as set out hereinabove, as of late, is has been observed
that documents are being notarized by a Notary in the absence of the signatory. Quite
often, the document to be notarized is sent to a Notary who then notarizes the
document in the absence of the signatory to the document. There are multiple ways in
which this malpractice is conducted. A Notary often leaves a blank row in his / her
Register which is filled subsequently. More often than not, the person signing the
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Register is different from the person who signed on the document to be notarized, or
the signatory to the document affixes his signature subsequently, i.e. after the
notarization, both in the document faultily notarized and in the Notary Register, and
the Court before which such document is filed is ignorant of the mischief played,
unless the mischief is caught out due to some lapse in the document. Such illegal
practices defeat the very purpose for which a document is required to be notarized. It
is distressing to note that in some cases, even Advocates support such illegal practices
by approaching the Notary Public to notarise a document/affidavit to be filed in a
judicial proceeding without being accompanied by the person whose signature has to
be affixed in presence of the notary.
29. Furthermore, other instances of malpractice have recently come to light.
Illustratively, in the present matter, whilst notarizing documents such as an Appeal, it
has been observed that the Notary did not thoroughly check the Exhibits / total
number of pages and mechanically proceeded to notarize such court filing. Another
challenge faced is that even after the registration of a Notary is suspended / cancelled,
such Notary continues to notarize documents. Moreover, persons not registered under
the Act also notarize documents.
30. Needless to state that the Courts, when confronted with the conduct as
discussed in the preceding paragraphs, must proceed to deal with all the parties
responsible for the same, strictly and take them to task, in order to prevent recurrence
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of the same.
31. Mr. Kohli has brought to our notice that this Court and various Courts
across India have repeatedly encountered instances of misuse / mischief by parties /
2
Advocates and Notaries . Whilst so observing, guidelines and strictures have been
passed from time to time. It was in these circumstances and owing to several
complaints received from the public at large regarding professional misconduct, that
the Government of Maharashtra proceeded to issue the Circulars with a view to curb
the mischief. Despite the aforesaid corrective measures, the Act and Rules have been
found lacking in preventing the prevalent misuse and mischief.
32. It has recently been observed that the Notaries have started notarizing
documents from vehicles parked in a public parking lot instead of an office/chamber. It
has also been observed that Notaries have been operating from public taxis around the
vicinity of this Court. Though several photographs of such vehicles/public taxis have
been produced before us, only by way of illustration we are producing hereunder three
photographs which shows to what extent the legal profession has degraded causing
anguish not only to the judiciary but also lowering the dignity of the profession in the
eyes of general public / common man.
2 Bar Council of Andhra Pradesh vs. B. Narayan Swamy & Anr. [(2014) 16 SCC 516] , Prataprai Trumbaklal
Mehta vs. Jayant Nemchand Shah & Anr. [1991 SCC OnLine Bom 205] and J.G. Hegde vs. R.D. Shukla
[2003 SCC OnLine Bom 908]
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33. Though we are told that many Advocates who are Notaries have due to
the pandemic, surrendered their office premises which they were using as licensees,
and are carrying on their job of notarizing documents in the aforestated manner there
are several notaries who have been operating from private vehicles and taxis much
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before the pandemic. In any event though we have full sympathy for the Advocates
who do not have their offices of their own to function from, we do believe that the
dignity of the profession needs to be maintained and the legal profession cannot be
allowed to function from the streets. We are also not able to understand how the
Municipal Corporation of Greater Mumbai (MCGM) and also the Appropriate
Authority have not taken any action till date in regard to the abovementioned
functioning of Advocates and Notaries from parking areas and streets manned by the
MCGM.
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34. Subsequent to the passing of our Order dated 26 October, 2021, Mr.
Kohli has brought to our notice that the Department of Legal Affairs has published the
Notaries (Amendment) Bill, 2021 (“ Draft Bill ”) and has invited comments and
suggestions on the Draft Bill by December 15, 2021.
35. A salient feature of the Draft Bill is that it proposes the digitization of
the records of a Notary. Further, provisions have been proposed for the digitization
and automation of notarial work undertaken by Notaries.
36. In view of this recent development, viz. the statement inviting comments
and suggestions to the Draft Bill, this Court alongwith Mr. Kohli and other Advocates
of this Court, engaged in discussions and exchange of suggestions, based on which Mr.
Kohli has prepared a Report proposing the following suggestions to the Draft Bill:
1. USE OF TECHNOLOGY :
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1.1 In addition to providing for digitization and automation of notarial
work undertaken by Notaries, the proposed Application / Portal must furnish an
updated data-base of Notaries registered under the Act, along with their name,
photograph, registration number, date of expiry of registration etc. This will provide
the general public with an additional safeguard to verify whether or not the Notary
they have approached is duly registered under the Act. Simultaneously, the proposed
Application / Portal must have an in-built mechanism which would prevent a person
from carrying out a notarial act unless such person is duly registered under the Act
and their registration has been confirmed on the Application / Portal.
(i) During the course of undertaking a notarial act, the proposed
Application / Portal must enable a Notary to simultaneously upload a photograph and
such other biometric identifiers, such as a fingerprint scan to confirm the presence of
the signatory before a Notary. The Application / Portal may also consider a
simultaneous upload of geographical identification metadata with the photograph of
the signatory. This process of GeoTagging will confirm the exact latitude and
longitude coordinates of the Notary and the signatory whilst undertaking the notarial
act. This measure will certainly remedy the mischief of a Notary notarizing a
document in the absence of the signatory.
2. AMENDING FORM XV :
2.1 Rule 11(2) of the Rules mandates that every Notary shall maintain
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a Register as per the form prescribed in Form XV. The form prescribed as on date is
inadequate and must be amended to add the following additional requirements:
(i) The time of the notarization;
(ii) No. of pages contained in the document being notarized including
its Annexures / Exhibits;
(iii) Venue of notarization;
(iv) Method by which the person signing the document was identified
and by whom;
(v) Remarks that the Notary may want to include such as the capacity
of the signatory / the physical condition of the signatory etc.
2.2 Form XV along with the aforesaid additions must also be
simultaneously introduced on the Portal pursuant to the Draft Bill.
3. IMPLEMENTING PRACTICES FROM FOREIGN JURISDICTIONS :
3.1 As a result of the pandemic Covid-19, immense difficulty was
faced in notarizing documents. In order to solve this difficulty, various jurisdictions
have empowered Notaries to notarize documents remotely. Illustratively, various
states in the United State of America have enabled notaries to notarize documents
remotely by a facility called ‘Remote Online Notarization’ (“RON”) . The process
provides for the remote notarization of documents using a video conferencing
software such as Zoom and Cisco Webex.
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3.2 Reference in this regard can be made to the Executive Order
No.202.7 by the State of New York and the Guidelines to Notaries on implementing
Executive Order No.202.7 authorizing RON published by the New York Department
of State. In Ryerson vs. Ryerson, 2021 N.Y. Slip. Op. 21172, the Supreme Court of
New York upheld the notarization of documents via videoconferencing.
3.3 The Department of Legal Affairs may therefore also consider
incorporating a provision for RON in the Draft Bill.
4. AUTHENTICATING INSERTIONS / ALTERATIONS /
DELETIONS SUBSEQUENT TO A DOCUMENT BEING NOTARIZED :
4.1 In the event that a document contains any alterations, insertions
or erasures subsequent to it being notarized, the same shall be authenticated by the
Notary by affixing his / her initials near such alterations, insertions or erasures with a
note forming a part of the document which sets out the paragraphs in which such
modifications are carried out. This note shall be followed by the signature (rubber
stamp) of the Notary, along with the date, time and location. The note may be added
at the end of the document after the Jurat in the following format:
I, [name of notary], hereby state that paragraph/s [•] of this document
contains alteration / insertion / erasure. This / These alteration / insertion(s) /
erasure(s) have been done before me by the Deponent on [date] at [time] and [place]
[Notary signature with the Stamp]
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5. RIGHT TO PRIVACY :
5.1 A Notary’s Register contains sufficient sensitive and confidential
information to enable identity theft / misuse / impersonation etc. This sensitive and
confidential information, such as a party’s biometric identifier merits protection.
5.2 Whilst amending the Act and Rules, additional responsibilities
must be cast on Notaries to ensure safe keeping and protection of the sensitive and
confidential data with which they are entrusted with.
6. MANTADORY ISSUANCE OF A RECEIPT FOR THE FEES
CHARGED BY A NOTARY :
6.1 Rule 11(9) of the Rules provides that every notary shall grant a
receipt for the fees and charges realized and maintain a register showing all the fees
and charges realized for every single notarial act. However, it has been observed that
notaries do not follow this mandate and default in issuing receipts. This was observed
by the Bombay High Court in Prataprai Trumbaklal Mehta vs Jayant Nemchand Shah
and Anr. ( Supra )
6.2 It is therefore recommended that the proposed Application /
Portal provide for means to make online payments to Notaries. Further, the proposed
Application / Portal must mandatorily issue an electronic receipt for every notarial act
undertaken.
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7. INCREASE IN FEES :
7.1 As per Rule 10(1) of the Rules, every Notary may charge fees for
notarizing the document not exceeding the rates mentioned in the Rules.
7.2 Further, as per Rule 10(3) of the Rules, a Notary may charge
travelling allowance when travelling by road or by rail at the rate of Rs.20 per
kilometre.
7.3 It is pertinent to note that since 1956, the fees charged by
Notaries have increased marginally. Hence, taking into account the increased
inflation / fuel prices etc., and the other hardships faced by the notaries, it is suggested
that the Draft Bill include provisions for an increase in the fees charged by Notaries.
This is all the more required considering that Notaries will now be required to expend
additional monies in order to equip themselves technologically to comply with the
Draft Bill once enacted.
8. INTRODUCTION OF A MODEL CODE OF CONDUCT :
8.1 The Act and the Rules do not provide for a code of conduct for
Notaries. It is recommended that a code of conduct for Notaries be introduced along
with the Draft Bill. Useful reference may be made to the Notary Public Code of
Professional Responsibility published by the National Notary Association in this
regard.
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8.2 The proposed code of conduct for Notaries would provide for a
code of ethics, as also the requirement of periodical training for Notaries. The code of
conduct for Notaries may also incorporate general provisions such as regular dos and
don’ts in respect of notarizing documents. This will enable Notaries to adapt to latest
developments in their field.
9. ADDITIONAL MEASURES :
9.1 As mentioned hereinabove, Notaries have started notarizing
documents from vehicles parked in a public parking lot instead of an office/chamber.
It has also been observed that Notaries have been operating from public taxis around
the vicinity of this Court.
9.2 It is therefore also recommended that this Court issue orders and
directions including to subordinate courts in Maharashtra prohibiting the aforesaid
practice. In support of this proposed prohibition, reference may be made to Rule 10(2)
of the Rules which provides that :
“The rates of fees to be charged by a notary shall be displayed by him in
conspicuous place inside as well as outside his chamber or office. "
(emphasis supplied)
9.3 Further, Rule 15 of the Rules provides :
“Each notary shall have an office within the area mentioned in the
certificate issued to him under Rule 8 and he shall exhibit it in a conspicuous
place there at a board showing his name and his designation as a notary.”
(emphasis supplied)
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9.4 A perusal of the aforesaid Rules indicate that the legislature,
whilst enacting the Act and Rules contemplated that Notaries would operate from
their office / chamber and certainly not from a public or private vehicle around the
vicinity of a Court.
9.5 It cannot be disputed that Notaries perform notarial acts around
the vicinity of Courts in India. The presence of Notaries in close proximity of Courts
is essential and ought to be recognized. Therefore, it is recommended that Notaries be
provided with a designated place in and around the premises of Courts without
Notaries having to incur the costs towards purchasing / renting an office / chamber.
37. We have considered the submissions of the Learned Amicus Curiae Mr.
Kohli and have given due consideration to his comprehensive Report covering the
prevalent law in India and the recent developments across the World, including in the
United States of America. In our considered opinion, undoubtedly, the Act and Rules
framed thereunder are in pressing need for major reform. We are, on a daily basis,
coming across matters wherein Notaries, Advocates and Parties are mischievously
getting documents notarized. However, we are now pleased to note that the Draft Bill
has been published proposing digitization of the records of a Notary and digitization
and automation of notarial work undertaken by Notaries. We would like to believe that
by the use of Information Technology, the prevalent mischief will be reduced to a great
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extent.
38. In the circumstances aforesaid and considering that the Department of
Legal Affairs has invited comments and suggestions on the Draft Bill by December 15,
2021, we deem it appropriate that the Registrar General of this Court forthwith
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forward a copy of this Order alongwith the Report dated 9 December, 2021
submitted by the Learned Advocate Mr. Nausher Kohli, to the Department of Legal
Affairs for their due consideration. We request the Department of Legal Affairs to give
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due consideration to this Order and the Report dated 9 December, 2021 submitted by
Mr. Nausher Kohli, Learned Advocate whilst enacting the Draft Bill.
39. Writ Petition No.4947 of 2021 alongwith Intervention Application (St)
No.18348 of 2021 and Suo-motu Contempt Petition No.1 of 2021 stand disposed off.
Commercial Appeal (L) No.23906 of 2021 alongwith Interim Applications taken out
therein also stand disposed off.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERVENTION APPLICATION (ST) NO. 18348 OF 2021
IN
WRIT PETITION NO. 4947 OF 2021
Samina Arif Khan alias Dhanlaxmi Chandrakant Devrukhkar
Age : 52 years, Occupation : Housewife, Adult,
Indian Inhabitant, residing at B-204, Sanghavi Complex,
Pearl CHS Ltd., Naya Nagar, Near Ganga Complex,
Mira Road (East), Mira Bhayander, Thane, Mira Road,
Maharashtra 401 107. … Applicant
In the matter between :
Dhanlaxmi Chandu Devrukar alias Samina Arif Khan,
Age … years, Occupation : Housewife, Indian Inhabitant,
residing at 502, A-Wing, National Avenue CHS Ltd.,
Akurali Road, Kandivali (East), Mumbai – 400 101. … Petitioner
Versus
1. The Town Planning/Land Acquisition Officer,
Malad, Mumbai District, Administrative Building,
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5 Floor, Natakwala Lane, S.V. Road, Borivali (East),
Mumbai – 400 095 through the Government Pleader,
Appellate Side, High Court, Bombay.
2. The Deputy Director of Land and Survey Record,
st
DD Building, 1 Floor, Old Tax Building, Fort,
Mumbai – 400 023 through the Government Pleader,
Appellate Side, High Court, Bombay.
3. The District Supt. Of Land and Survey Record,
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Administrative Building, 10 Floor,
Government Colony, Bandra (East),
Mumbai – 400 051 through Government Pleader,
Appellate Side, High Court, Bombay.
4. Hon’ble Revenue Minister, Mantralaya,
Fort, Mumbai 400 023 through the
Government Pleader, Appellate Side,
High Court, Bombay.
5. The Mumbai Pradesh Congress Committee,
Veerkope, Vakhadi, i.e. Village Chinchivali,
Bandar Road, Malad (West), Mumbai – 400 064.
6. Sardar Vallabhbhai Patel Academy Trust,
Vittal Sadan, Congress Committee, V.P. Road,
Fort, Mumbai – 400 004.
7. Brahut Bharti Samaj Trust Devrukhwadi Wadi,
Chinchivali, Bandar Road, Malad (West),
Mumbai – 400 064. … Respondents
WITH
CRIMINAL APPELLATE JURISDICTION
SUO-MOTU CONTEMPT PETITION NO. 1 OF 2021
IN
INTERVENTION APPLICATION (ST) NO. 18348 OF 2021
IN
WRIT PETITION NO. 4947 OF 2021
High Court on its own Motion ... Petitioner
Versus
1. S.M. Naqvi
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Advocate and Notary, Government of India,
49, Roshan Estate, Jari Mari, Kurla (West),
Mumbai – 400 070
2. Sandeep Sadanand Dharne,
202, Laxmi Palace, Cross Road No.3,
Liberty Garden, Malad (West),
Mumbai – 400 064. ... Respondents
WITH
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 23929 OF 2021
IN
COMMERCIAL APPEAL (L) NO. 23906 OF 2021
IN
INTERIM APPLICATION (L) NO. 23015 OF 2021
IN
EXECUTION APPLICATION (L) NO. 19230 OF 2021
IN
COMMERCIAL ARBITRATION PETITION NO. 20 OF 2020
1. M/s. Sanskriti Developers,
A partnership firm, registered under the
Indian Partnership Act, 1932, having office at
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21, 13 Khetwadi Lane, Mumbai – 400 004.
2. Mr. Vijay Jain,
having its office at 207, Mantri Building,
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JSS Road, Girgaum, Mumbai – 400 004.
3. Hitesh Bohra,
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Having office at 21, 13 Khetwadi Lane,
Mumbai – 400 004.
4. M/s. D.R. Developers,
A proprietary concern through its Proprietor,
Mr. Sailesh Vanigota, having its office at 207,
Mantri Building, JSS Road, Girgaum,
Mumbai 400 004. … Applicants/
Original Appellants
In the matter between :
1. M/s. Sanskriti Developers,
A partnership firm, registered under the Indian
Partnership Act, 1932, having office at 21,
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13 Khetwadi Lane, Mumabi – 400 004.
2. Mr. Vijay Jain,
having its office at 207, Mantri Building,
JSS Road, Girgaum, Mumbai – 400 004.
3. Hitesh Bohra,
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Having office at 21, 13 Khetwadi Lane,
Mumbai – 400 004.
4. M/s. D.R. Developers,
A proprietary concern through its Proprietor,
Mr. Sailesh Vanigota, having its office at 207,
Mantri Building, JSS Road, Girgaum,
Mumbai 400 004. … Appellants/
Respondents
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Versus
M/s. Mandal Infrastructure Pvt. Ltd.
A private limited company having its Office at
342, New Corporate Plaza, Ramchandra Lane,
Malad (West), Mumbai – 400 064. … Respondent
…......
Mr. Ashok Dhanuka alongwith Mr. Aiqan Memon instructed by W3Legal, LLP for the
Applicant in IAST 18348 of 2021.
Mr. Rohan Barge, for the Petitioner in WP 4947 of 2021.
Mrs. S.D.Vyas, ‘B’ Panel Counsel for the State in WP 4947 of 2021.
Mrs. Aruna Pai, Public Prosecutor, for the State in SMCP 1 of 2021.
Mr. D.P.Singh, for Union of India.
Mr. Sarif S. Khan, for Contemnor No.1 in SMCP 1 of 2021.
Mr. Mohd. Muqim Khan, for Contemnor No.2 in SMCP 1 of 2021.
Mr. Somnath Anchan for the auction purchaser.
Dr. Birendra Saraf, Senior Advocate alongwith Mr. Karl Tamboly, Mr. Satchit Bhogle
instructed by Mr. Khan Javed Akhtar, for the Appellant.
Mr. Sharan Jagtiani, Senior Advocate alongwith Ms. Surabhi Agrawal, Mr. Kashish
Mainkar, Ms. Treesa Ann Benny instructed by Wadia Ghandy and Co., for the
Respondent in Appeal (L) NO.23906 of 2021. .
Mr. D.N.Kher, Court Receiver with Mr. A.B.Malwankar, Section Officer, present.
Mr. Nausher Kohli, Amicus Curiae alongwith Mr. Akash Agarwal present.
…......
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
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DATE : 18 FEBRUARY, 2022
JUDGMENT (PER : S.J. KATHAWALLA, J.) :
1. In Intervention Application (ST) No.18348 of 2021 taken out in Civil
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Writ Petition No.4947 of 2021, a Praecipe dated 29 September, 2021 was received
from Advocate Shri A.R.Dhanuka on behalf of the Applicant – Samina Arif Khan @
Dhanlaxmi Chandrakant Devrukhkar (‘Samina’) to place the Intervention Application
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for urgent hearing and orders since according to Samina, Advocate Shri Rohan Barge
and Notary - Shri S.M.Naqvi alongwith an unknown person have filed Writ Petition
No.4947 of 2021 before this Court in the name of Samina, seeking reliefs against the
Town Planning / Land Acquisition Officer, Malad and Others, without her consent,
knowledge and authority, thereby committing offences of cheating, fraud,
impersonation and forgery against her and also this Court.
2. In view of the serious allegations made by Samina, the captioned
Intervention Application along with Writ Petition No.4947 of 2021 were placed on
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Board before this Court on 4 October, 2021. On that day, the Advocate representing
– Samina reiterated that Samina had not given any instructions to Advocate Rohan
Barge to file the captioned Writ Petition. It was also submitted that after Samina’s
Advocate obtained a certified copy of Writ Petition No. 4947 of 2021 filed in her name
by Advocate Rohan Barge, she noted that the signature after the prayer clause and
under the verification clause at pages 11 and 12 respectively of the Writ Petition, are
not hers. We therefore passed an Order directing Advocate Rohan Barge to remain
present before us on the same day at 2.30 p.m. Since Advocate Rohan Barge was not
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present at 2.30 p.m., we directed him to remain present in Court on 5 October, 2021,
at 2.30 p.m.
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3. On 5 October, 2021 Advocate Rohan Barge was present before this
Court along with one Mr. R.L.Agawane, a registered clerk and one Shri Sandeep S.
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Dharne. An Affidavit of Shri Sandeep Dharne was tendered in Court. In the said
Affidavit, which was admittedly drafted by Advocate Rohan Barge, it was stated that in
the month of January, 2020, Shri Dharne had approached the Registered Clerk Shri
Agawane, who introduced him to Advocate Rohan Barge for filing the above Writ
Petition before this Court ; that in the meeting with Advocate Rohan Barge, Shri
Dharne had appraised him of all the facts in the matter, including the fact that Shri
Dharne had with him the Power of Attorney executed in his favour by Samina in the
year 2005 ; that he (Shri Dharne) had contacted Samina and sought her confirmation
to file the captioned Writ Petition before this Court ; that after the said Writ Petition
was drafted by Advocate Barge, Shri Agawane, Registered Clerk, called Mr. Dharne
“for presenting the client before the High Court for Notary purpose.” Shri Agawane
thereupon read over the contents of the Writ Petition and the said Writ Petition was
handed over to him (Shri Dharne) by Shri Agawane “for notary purpose for
identification” ; that since Samina was hospitalised, Shri Dharne signed the Writ
Petition on her behalf and the said fact was not disclosed to Advocate Barge or Shri
Agawane ; that he was having power of attorney of Samina “for filing all documents in
Revenue Departments and Government purposes and also for attending all Courts of
Law” ; that he inadvertently signed the Writ Petition on behalf of Samina ; that
Samina has filed the above Writ Petition recording the facts which are incorrect only
because she has not paid the legal fees for the matter which Shri Dharane attended on
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her behalf in revenue court’s and therefore, “he do not have prime role in the Writ
Petition.”
4. We therefore, asked Shri Dharne to produce the original Power of
Attorney, or a copy thereof executed by Samina in his favour. He informed the Court
that he is not having the original or the copy of the same “at present”. However, he
admitted that under the said Power of Attorney which was executed by Samina in his
favour, he was to represent Samina only in revenue matters and was not given the
power to file Writ Petition No.4947 of 2021.
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5. Samina who was also present before this Court on 5 October, 2021
along with her Advocate, informed the Court that she was not hospitalized at the
relevant time as alleged and that at no point of time was she informed by Shri Dharne
that the above Writ Petition was to be filed, or has been filed before the Court on her
behalf.
6. Since Shri S.M.Naqvi, Notary, Government of India, has put his
endorsement at page No.12 of the Writ Petition confirming that Samina has affirmed /
verified the above Writ Petition before him, we directed Shri Naqvi to remain present
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before this Court on 6 October, 2021 at 10.30 a.m., along with the Notary Register
No.437 wherein he has made entry with regard to the document that he has notarized
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on 11 February, 2020 under Serial No.478 Page No.41.
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7. On 6 October, 2021 the Notary - Advocate S.M.Naqvi appeared in the
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morning session and sought time to place his Notary Register before the Court at 2.45
p.m. Upon him producing the Notary Register at 2.45 p.m., we initially showed him
the Verification Clause at page 12 of the Writ Petition, whereunder the signature of
Samina appears. After the signature of Samina, Advocate Naqvi has put his rubber
stamp “BEFORE ME” and thereunder Shri Naqvi has put his signature and has
written the date ‘11.2.2020’ in his own handwriting. Below his signature and date,
Shri Naqvi has affixed his rubber stamp describing him as ‘Notary – Govt. of India’
and his address thereunder. When we asked the Notary Shri Naqvi whether Samina
was present before him and whether she had put her signature in his presence, the
Notary – Shri Naqvi answered in the affirmative. We therefore, asked him to show the
signature of Samina in the Notary Register produced by him. Thereupon, he made
one more false statement that she had signed the Verification Clause before him, but
his clerk had by mistake taken the signature of Shri Dharne in the Notary Register.
When we warned Shri Naqvi of taking stern action against him for making false
statements before this Court, he admitted that he has never met Samina. He stated
that the Verification Clause in the Writ Petition was signed in his presence by Shri
Dharne as ‘Samina A. Khan’. When we asked him as to how he allowed Shri Dharne to
sign as ‘Samina A. Khan’ and how he has put his (Shri Naqvi’s) rubber stamp and
signature verifying that Samina A. Khan has signed before him, he stated that he has
done it in good faith. When we asked him how much he charged for this
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unprofessional conduct, he informed the Court that he has charged Rs. 60/-.
However, Shri Dharne informed the Court that he had paid Shri Naqvi approximately
Rs. 1000/- to Rs. 1500/- for the same.
8. Since Shri Naqvi, as recorded hereinabove, and also in our Order dated
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6 October, 2021, has deliberately made incorrect and false statements knowing the
same to be false, thereby scandalizing the authority of this Court and interfering with
the administration of justice, we were satisfied that there exists a prima facie case for
issuance of a Show Cause Notice for considering action under Article 215 of the
Constitution of India and the Contempt of Courts Act, 1971 against Shri S.M. Naqvi,
Advocate and Notary. The Registry was therefore, directed to issue Show Cause
Notice to Shri S.M. Naqvi (Advocate and Notary) under Rule 9 of Chapter XXXIV of
the Bombay High Court Appellate Side Rules, 1960 made returnable on 21st October,
2021.
9. Since Shri Dharne had filed Writ Petition No.4947 of 2021 in the name
of Samina against the Town Planning / Land Acquisition Officer and others and had
affirmed the same in presence of Shri S.M. Naqvi, Advocate and Notary,
by signing the same as ‘Samina A. Khan’, in our view Shri Dharne had scandalized the
authority of this Court; interfered with the due course of judicial proceedings
and obstructed the administration of justice. We were therefore satisfied that there
exists a prima facie case for issuance of notice for considering action under Article 215
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of the Constitution of India and the Contempt of Courts Act, 1971 against Shri
Sandeep Dharne. The Registry was therefore directed to issue Show Cause Notice to
Shri Sandeep Dharne under Rule 9 of Chapter XXXIV of the Bombay High Court
Appellate Side Rules, 1960, made returnable on 21st October, 2021. A copy of the
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Order dated 6 October, 2021 recording all the above facts, was directed to be
forwarded to Shri. Anil Singh, Additional Solicitor General (Western Region), and the
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matter was adjourned to 21 October, 2021.
10. Accordingly, show cause notices were issued to Advocate Naqvi as well
as to Shri Dharne and Suo Motu Criminal Contempt Petition No.1 of 2021 was
registered against them.
11. Pursuant to the above Order, Shri Sandeep Dharne has filed two
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Affidavits both dated 17 November, 2021. Though he has tried to shift the blame on
Samina and has tried to allege that Samina had executed a Power of Attorney in his
favour to take steps qua the property mentioned in the said Power of Attorney, he was
aware of the fact that though Writ Petition No.4947 of 2021 is filed by him on her
behalf, in fact a perusal of the Power of Attorney indicates that Samina had certainly
not authorized Shri Dharne to file any Writ Petition in this Court. Since Shri Dharne
has not produced any document/s to indicate that Samina was at the relevant time in
hospital, and that he had therefore obtained her oral consent, as alleged by him, we do
not accept the said statement made by Shri Dharne, more so in light of the fact that
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Samina has herself denied before this Court on 5 October, 2021, that she was in
hospital at the relevant time. We are therefore, satisfied that Shri Dharne has by
signing the Writ Petition in the name of Samina made an attempt to mislead the
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Court. In any event, since he has in paragraph No.10 of the Affidavit dated 17
November, 2021, tendered an unconditional apology, interalia stating that, “I hereby
tender my unconditional apology for my conduct of signing the Petition as Samina
before the Notary Public and submitting the said Petition without even informing the
Advocate on Record who has filed the Petition in this Court in good faith”, we accept
his unconditional apology and direct him to pay Rs.2,000/- to the Maharashtra State
Legal Services Authority within four days from the date of uploading this Order. The
Power of Attorney executed by Samina in favour of Shri Dharne stands revoked with
immediate effect and Shri Dharne undertakes not to act on the said Power of Attorney
at any point of time in future.
12. As far as the Notary Shri Naqvi is concerned, as stated hereinabove, he
on more than one occasion made statement before the Court knowing the same to be
false, which statements he later corrected. We are satisfied that Shri Naqvi, Advocate
and Notary did make an attempt to mislead this Court and corrected his statements
only after he was warned of stern action. However, since in his Affidavit he has stated
that he is 72 years old and is tendering an unconditional apology and will be careful in
future, we accept the unconditional apology tendered by the Notary Shri S.M. Naqvi.
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He shall also pay Rs.2,000/- to the Maharashtra State Legal Services Authority within
four days from the date of uploading this Order.
13. Though we have not issued Notice to Advocate Rohan Barge, we have
pointed out to Advocate Barge that before preparing the Writ Petition in the name of
Samina, on the representation of Shri Dharne that he holds a Power of Attorney of
Samina in his favour, it was his duty to call for the said Power of Attorney allegedly
executed by Samina in favour of Shri Dharne and verify the statement made by Shri
Dharne. To that extent he has been negligent. Advocate Rohan Barge has tendered his
unconditional apology and has assured the Court that there will be no such lapse on
his part in future whilst dealing with any litigants. We accept the unconditional
apology tendered by Advocate Barge and warn him of stern action in the event of such
conduct being repeated in future.
14. In view of the above, Shri Dharne seeks to withdraw the above Writ
Petition No. 4947 of 2021. The Writ Petition is therefore disposed of. Intervention
Application (ST) No.18348 of 2021 taken out by Samina also stands disposed of. Suo
Motu Criminal Contempt Petition No.1 of 2021 also stands disposed of. However,
Samina will be at liberty to take out appropriate proceedings against Shri Dharne,
which if taken out will be decided on its own merits without being influenced by this
Order.
15. Whilst we were dealing interalia with the aforesaid unprofessional
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conduct of the Notary Shri S.M.Naqvi, one more matter pertaining to the
unprofessional conduct of a Notary, i.e. Advocate Shri Sandeep Shah was moved
before us through Interim Application (L) No.23929 of 2021 in Comm. Appeal (L)
No.23906 of 2021. In this case/matter, Comm. Appeal (L) No.23906 of 2021 was
filed by Advocate Khan Javed Akhtar. The Appeal was filed and notarized prior to the
Order impugned in the Appeal being uploaded by the Learned Single Judge. In other
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words, the impugned Order was passed on 12 October, 2021 and was uploaded and
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made available to the parties only on 13 October, 2021. However, Advocate Khan had
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prepared the Appeal on 12 October, 2021 stating therein that the impugned Order
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dated 12 October, 2021 is annexed as Exhibit A to the Appeal, and asked
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Partner/Director of the Appellant to get the appeal affirmed before the Notary on 12
October, 2021. Mr. Vijay Jain, the Partner/Director of the Appellants has informed us
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that he got the Appeal notarized on 12 October, 2021 from the Notary - Shri Sandip
Shah, since Advocate Khan Javed Akhtar had asked him to do so on 12th October,
2021. He also informed the Court that he had drawn the attention of Shri Sandip Shah
to the fact that the impugned Order was not uploaded / made available and therefore,
Exhibit ‘A’ was not annexed to the Appeal. Despite the above, Shri Sandip Shah
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notarized the above Appeal on 12 October, 2021 with an incorrect endorsement in his
own handwriting : “Ex-A to E are annexed hereunder. Sd/- Sandip Shah,
Advocate & Notary” . Upon noting the aforesaid mischief, we asked Advocate
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Akhtar as to why he asked his client to get the Memo of Appeal notarized before
uploading of the impugned Order by the Learned Single Judge, to which Advocate
Akhtar had no answer. We therefore, directed Shri Shah, Advocate & Notary to
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remain present before this Court along with his Notary Register on 21 October, 2021
at 04.30 p.m.
16. Accordingly, Shri Shah, Advocate & Notary remained present before us
along with his Notary Register. The Notary Register showed that he has notarized the
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above Appeal on 12 October, 2021. When we asked him as to why he has made an
endorsement in his own handwriting at internal page 15, running page 10 of the
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Appeal on 12 October, 2021, stating that “Ex-A to E are annexed hereunder. Sd/-
Sandip Shah, Advocate & Notary” , when Exhibit ‘A’ (the impugned Order) was
uploaded / made available only on 13th October, 2021, he informed the Court that
since in the body of the Appeal prepared by Advocate Akhtar, Exhibits ‘A’ to “E’ were
mentioned, he was misguided and made the said endorsement, “Ex-A to E are
annexed hereunder Sd/- Sandip Shah, Advocate & Notary.” When we pointed out
to Shri Sandip Shah that the explanation given by him to this Court is false and
untenable on the face of the document since when he has put his stamp and signature
on each of the Exhibits, i.e. Exhibits ‘B’ to ‘E’, he could not have missed the fact that
Exhibit ‘A’ is not annexed to the Appeal, he admitted having given false explanation
and expressed regret for his conduct.
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17. By our Order dated 21 October, 2021, passed in Interim Application (L)
No.23929 of 2021, after recording the aforesaid conduct of Advocate Khan and Shri
Sandip Shah, Advocate and Notary, we have interalia recorded as under :
“8. In view of the above, it prima facie appears that Advocate – Khan
Javed Akhtar appearing for the Appellant, as well as Shri Sandip A. Shah,
Advocate & Notary, are not only guilty of unprofessional conduct but they
have made statements before the Court which are false and incorrect to their
knowledge with a view to mislead the Court. Advocate – Khan Javed Akhtar
and Shri Sandip A. Shah, Advocate & Notary shall therefore file their
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respective Affidavits on or before 27 October, 2021 explaining why action
should not be taken against them for their afforested conduct.
9. The Court Receiver, Bombay High Court, shall take possession of
the flats as ordered by the Learned Single Judge and put his locks on the said
flats. Needless to add that the said exercise shall be carried out subject to
further orders passed by this Court on the adjourned date and / or any other
date when the above Appeal is taken up for admission / hearing.
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10. Stand over to 27 October, 2021 to enable the Advocate – Khan
Javed Akhtar appearing for the Appellant as well as Shri Sandip A. Shah,
Advocate & Notary to file their respective Affidavits.
11. A copy of this Order shall be forwarded to the Learned ASG Shri
Anil Singh.”
18. Accordingly, Advocate Javed Akhtar Khan filed his Affidavit, paragraph
No.10 of which is reproduced hereunder :
“10. I say that I hereby tender my unconditional apology and
unqualified apology for the said mistake of not mentioning in paragraph 2 of
the Appeal Memo that the copy was unavailable at the time of Notary. I have
hereinabove explained the circumstances in which the said error has taken
place. I had not intended to file any false information or to tamper with the
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proceedings or court proceedings or notary proceedings with malafide
intentions or with ulterior motive. I say that the said mistake is not intentional
to gain anything nor I have any interest in the matter to gain unlawfully. I say
that henceforth I will be taking extra care and will be extra cautious in such
matters. I say with folded hands that I am the sole bread earner of my family
consisting of wife and two kids who are studying in class X and Class VI
respectively therefore, request this Hon’ble Court for not action to be taken
against me.”
19. Advocate Sandeep Shah has also filed an Affidavit, paragraph 10 of
which is reproduced hereunder :
“I say that I hereby tender my unconditional and unqualified apology for the
said mistake committed by me at page No.10 or page No.136 or page No.138
of the Appeal memo and I have hereinabove explained the circumstances in
which the said error has taken place. I had not intended to file any false
information. I say that henceforth will be taking extra care or will be extra
cautious of the said mistake committed by me. I say that I am the only bread
earner of my family. I say that the mistake being unintentional therefore, this
Hon’ble Court should have a mercy on me and family members. I say that I
undertake to this Hon’ble Court that I shall not commit such mistake / errors
in future. I say that I am having no source of income other than this. I say
that all my children at studying and any adverse orders being passed shall
impede their education. I say that I am suffering from high diabetes and also
from hypertension. ……….”
20. In view of the above, we accept the unconditional and unqualified
apology tendered by Advocate Javed Akhtar Khan, as well as Notary Shri Sandeep
Shah. However, they shall also pay Rs.2000/- each to the State Legal Aid Fund,
Maharashtra State Legal Services Authority within four days from the date of
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uploading this Order.
21. In the above Appeal, the Court Receiver was directed to put up the office
premises of the Appellants for sale. The Appellants have in order to avoid sale of the
same, without prejudice to their rights and contentions, deposited an amount
aggregating to Rs.4.40 Crores with this Court, i.e. Rs.4 Crores with the Court
Receiver, High Court, Bombay, and Rs.40 Lakhs with the Prothonotary and Senior
Master of this Court. The Court Receiver will transfer the amount deposited with
him to the Prothonotary and Senior Master of this Court. The Respondent – Mandal
Infrastructure Pvt. Ltd. may move the Single Judge in execution proceedings seeking
withdrawal of the amount deposited by the Appellant, or part thereof which
Application will be heard on its own merits. The Execution Application/proceedings
shall be heard and disposed off by the Learned Single Judge at the earliest and all
contentions of the parties are kept open. The above Appeal is accordingly disposed of.
Interim Application (L) No.23929 of 2021 also stands disposed of. The Show Cause
Notice issued to Shri Vijay Jain for putting up a new door in front of the original door
of the office with a view to cover the Court Receiver’s board put up on the original
door, stands discharged. The Court Receiver’s Report stands disposed off.
22. In view of the above unprofessional manner in which the Advocates
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appointed as Notaries are functioning, by our Order dated 26 October, 2021 we
recorded that we would like to make certain suggestions/recommendations qua
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changes required in the Notaries Act, 1952 and to the Rules framed thereunder, as also
the Circulars issued from time to time, so as to avoid any mischief being played by any
Advocate, Notary or a party, in the course of getting any document notarized. We
therefore appointed Advocate Nausher Kohli as Amicus Curiae, to assist the Court in
its aforestated endeavour.
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23. Mr. Kohli, Learned Advocate has submitted his Report dated 9
December, 2021. We have perused the Report submitted by Mr. Kohli. Mr. Kohli has
taken us through the ancient and distinguished history of Notaries emanating from the
Roman Empire. We note that this Court in Prataprai Trumbaklal Mehta vs Jayant
1
Nemchand Shah and Anr. , has held that Notaries enjoy high status throughout the
country and our Courts take judicial notice of the seal of a Notary. Significant weight
is attached to a document attested by a Notary. Undisputedly, the office of a Notary
assumes immense legal significance.
24. The President of India granted assent to the Notaries Act 1952 on
August 9, 1952 (“Act”) . The Act came into force on December 14, 1956. Prior to the
passing of the Act, the Government of India was empowered to appoint Notaries
Public under Sections 138 and 139 of the Negotiable Instruments Act, 1881, for the
functioning of Notaries. Prior to the passing of the Act, the Master of Faculties in
England would appoint Notaries Public in India for performing notarial functions.
25. In exercise of the powers conferred by Section 15 of the Act, the Central
1 1991 SCC OnLine Bom 205
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Government has framed the Notaries Rules, 1956 (“Rules”) .
26. Notaries are governed by the Act and the Rules. In addition, in order to
curb instances of mischief, the Government of Maharashtra, Law & Judiciary
Department, had issued Circulars dated December 18, 2001 and January 25, 2008
(“Circulars”) .
27. Despite the Act and Rules having been enacted approximately 70 years
ago, there have till date, not been any major amendments / reforms introduced to the
Act and Rules. Illustratively, a Notary is entitled to charge travelling allowance by road
at the rate of Rs.20/- per kilometre. This figure was inserted by an amendment in
2014, i.e. 7 years ago. The cost of fuel has certainly increased over the past 7 years.
Similarly, the fees payable to a Notary for undertaking a notarial act was also last
amended in 2014.
28. Amongst the various functions of a Notary, perhaps the most important
is that of attesting signatures on documents. This is aimed at reducing fraud /
misrepresentation. However, as set out hereinabove, as of late, is has been observed
that documents are being notarized by a Notary in the absence of the signatory. Quite
often, the document to be notarized is sent to a Notary who then notarizes the
document in the absence of the signatory to the document. There are multiple ways in
which this malpractice is conducted. A Notary often leaves a blank row in his / her
Register which is filled subsequently. More often than not, the person signing the
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Register is different from the person who signed on the document to be notarized, or
the signatory to the document affixes his signature subsequently, i.e. after the
notarization, both in the document faultily notarized and in the Notary Register, and
the Court before which such document is filed is ignorant of the mischief played,
unless the mischief is caught out due to some lapse in the document. Such illegal
practices defeat the very purpose for which a document is required to be notarized. It
is distressing to note that in some cases, even Advocates support such illegal practices
by approaching the Notary Public to notarise a document/affidavit to be filed in a
judicial proceeding without being accompanied by the person whose signature has to
be affixed in presence of the notary.
29. Furthermore, other instances of malpractice have recently come to light.
Illustratively, in the present matter, whilst notarizing documents such as an Appeal, it
has been observed that the Notary did not thoroughly check the Exhibits / total
number of pages and mechanically proceeded to notarize such court filing. Another
challenge faced is that even after the registration of a Notary is suspended / cancelled,
such Notary continues to notarize documents. Moreover, persons not registered under
the Act also notarize documents.
30. Needless to state that the Courts, when confronted with the conduct as
discussed in the preceding paragraphs, must proceed to deal with all the parties
responsible for the same, strictly and take them to task, in order to prevent recurrence
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of the same.
31. Mr. Kohli has brought to our notice that this Court and various Courts
across India have repeatedly encountered instances of misuse / mischief by parties /
2
Advocates and Notaries . Whilst so observing, guidelines and strictures have been
passed from time to time. It was in these circumstances and owing to several
complaints received from the public at large regarding professional misconduct, that
the Government of Maharashtra proceeded to issue the Circulars with a view to curb
the mischief. Despite the aforesaid corrective measures, the Act and Rules have been
found lacking in preventing the prevalent misuse and mischief.
32. It has recently been observed that the Notaries have started notarizing
documents from vehicles parked in a public parking lot instead of an office/chamber. It
has also been observed that Notaries have been operating from public taxis around the
vicinity of this Court. Though several photographs of such vehicles/public taxis have
been produced before us, only by way of illustration we are producing hereunder three
photographs which shows to what extent the legal profession has degraded causing
anguish not only to the judiciary but also lowering the dignity of the profession in the
eyes of general public / common man.
2 Bar Council of Andhra Pradesh vs. B. Narayan Swamy & Anr. [(2014) 16 SCC 516] , Prataprai Trumbaklal
Mehta vs. Jayant Nemchand Shah & Anr. [1991 SCC OnLine Bom 205] and J.G. Hegde vs. R.D. Shukla
[2003 SCC OnLine Bom 908]
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33. Though we are told that many Advocates who are Notaries have due to
the pandemic, surrendered their office premises which they were using as licensees,
and are carrying on their job of notarizing documents in the aforestated manner there
are several notaries who have been operating from private vehicles and taxis much
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before the pandemic. In any event though we have full sympathy for the Advocates
who do not have their offices of their own to function from, we do believe that the
dignity of the profession needs to be maintained and the legal profession cannot be
allowed to function from the streets. We are also not able to understand how the
Municipal Corporation of Greater Mumbai (MCGM) and also the Appropriate
Authority have not taken any action till date in regard to the abovementioned
functioning of Advocates and Notaries from parking areas and streets manned by the
MCGM.
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34. Subsequent to the passing of our Order dated 26 October, 2021, Mr.
Kohli has brought to our notice that the Department of Legal Affairs has published the
Notaries (Amendment) Bill, 2021 (“ Draft Bill ”) and has invited comments and
suggestions on the Draft Bill by December 15, 2021.
35. A salient feature of the Draft Bill is that it proposes the digitization of
the records of a Notary. Further, provisions have been proposed for the digitization
and automation of notarial work undertaken by Notaries.
36. In view of this recent development, viz. the statement inviting comments
and suggestions to the Draft Bill, this Court alongwith Mr. Kohli and other Advocates
of this Court, engaged in discussions and exchange of suggestions, based on which Mr.
Kohli has prepared a Report proposing the following suggestions to the Draft Bill:
1. USE OF TECHNOLOGY :
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1.1 In addition to providing for digitization and automation of notarial
work undertaken by Notaries, the proposed Application / Portal must furnish an
updated data-base of Notaries registered under the Act, along with their name,
photograph, registration number, date of expiry of registration etc. This will provide
the general public with an additional safeguard to verify whether or not the Notary
they have approached is duly registered under the Act. Simultaneously, the proposed
Application / Portal must have an in-built mechanism which would prevent a person
from carrying out a notarial act unless such person is duly registered under the Act
and their registration has been confirmed on the Application / Portal.
(i) During the course of undertaking a notarial act, the proposed
Application / Portal must enable a Notary to simultaneously upload a photograph and
such other biometric identifiers, such as a fingerprint scan to confirm the presence of
the signatory before a Notary. The Application / Portal may also consider a
simultaneous upload of geographical identification metadata with the photograph of
the signatory. This process of GeoTagging will confirm the exact latitude and
longitude coordinates of the Notary and the signatory whilst undertaking the notarial
act. This measure will certainly remedy the mischief of a Notary notarizing a
document in the absence of the signatory.
2. AMENDING FORM XV :
2.1 Rule 11(2) of the Rules mandates that every Notary shall maintain
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a Register as per the form prescribed in Form XV. The form prescribed as on date is
inadequate and must be amended to add the following additional requirements:
(i) The time of the notarization;
(ii) No. of pages contained in the document being notarized including
its Annexures / Exhibits;
(iii) Venue of notarization;
(iv) Method by which the person signing the document was identified
and by whom;
(v) Remarks that the Notary may want to include such as the capacity
of the signatory / the physical condition of the signatory etc.
2.2 Form XV along with the aforesaid additions must also be
simultaneously introduced on the Portal pursuant to the Draft Bill.
3. IMPLEMENTING PRACTICES FROM FOREIGN JURISDICTIONS :
3.1 As a result of the pandemic Covid-19, immense difficulty was
faced in notarizing documents. In order to solve this difficulty, various jurisdictions
have empowered Notaries to notarize documents remotely. Illustratively, various
states in the United State of America have enabled notaries to notarize documents
remotely by a facility called ‘Remote Online Notarization’ (“RON”) . The process
provides for the remote notarization of documents using a video conferencing
software such as Zoom and Cisco Webex.
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3.2 Reference in this regard can be made to the Executive Order
No.202.7 by the State of New York and the Guidelines to Notaries on implementing
Executive Order No.202.7 authorizing RON published by the New York Department
of State. In Ryerson vs. Ryerson, 2021 N.Y. Slip. Op. 21172, the Supreme Court of
New York upheld the notarization of documents via videoconferencing.
3.3 The Department of Legal Affairs may therefore also consider
incorporating a provision for RON in the Draft Bill.
4. AUTHENTICATING INSERTIONS / ALTERATIONS /
DELETIONS SUBSEQUENT TO A DOCUMENT BEING NOTARIZED :
4.1 In the event that a document contains any alterations, insertions
or erasures subsequent to it being notarized, the same shall be authenticated by the
Notary by affixing his / her initials near such alterations, insertions or erasures with a
note forming a part of the document which sets out the paragraphs in which such
modifications are carried out. This note shall be followed by the signature (rubber
stamp) of the Notary, along with the date, time and location. The note may be added
at the end of the document after the Jurat in the following format:
I, [name of notary], hereby state that paragraph/s [•] of this document
contains alteration / insertion / erasure. This / These alteration / insertion(s) /
erasure(s) have been done before me by the Deponent on [date] at [time] and [place]
[Notary signature with the Stamp]
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5. RIGHT TO PRIVACY :
5.1 A Notary’s Register contains sufficient sensitive and confidential
information to enable identity theft / misuse / impersonation etc. This sensitive and
confidential information, such as a party’s biometric identifier merits protection.
5.2 Whilst amending the Act and Rules, additional responsibilities
must be cast on Notaries to ensure safe keeping and protection of the sensitive and
confidential data with which they are entrusted with.
6. MANTADORY ISSUANCE OF A RECEIPT FOR THE FEES
CHARGED BY A NOTARY :
6.1 Rule 11(9) of the Rules provides that every notary shall grant a
receipt for the fees and charges realized and maintain a register showing all the fees
and charges realized for every single notarial act. However, it has been observed that
notaries do not follow this mandate and default in issuing receipts. This was observed
by the Bombay High Court in Prataprai Trumbaklal Mehta vs Jayant Nemchand Shah
and Anr. ( Supra )
6.2 It is therefore recommended that the proposed Application /
Portal provide for means to make online payments to Notaries. Further, the proposed
Application / Portal must mandatorily issue an electronic receipt for every notarial act
undertaken.
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7. INCREASE IN FEES :
7.1 As per Rule 10(1) of the Rules, every Notary may charge fees for
notarizing the document not exceeding the rates mentioned in the Rules.
7.2 Further, as per Rule 10(3) of the Rules, a Notary may charge
travelling allowance when travelling by road or by rail at the rate of Rs.20 per
kilometre.
7.3 It is pertinent to note that since 1956, the fees charged by
Notaries have increased marginally. Hence, taking into account the increased
inflation / fuel prices etc., and the other hardships faced by the notaries, it is suggested
that the Draft Bill include provisions for an increase in the fees charged by Notaries.
This is all the more required considering that Notaries will now be required to expend
additional monies in order to equip themselves technologically to comply with the
Draft Bill once enacted.
8. INTRODUCTION OF A MODEL CODE OF CONDUCT :
8.1 The Act and the Rules do not provide for a code of conduct for
Notaries. It is recommended that a code of conduct for Notaries be introduced along
with the Draft Bill. Useful reference may be made to the Notary Public Code of
Professional Responsibility published by the National Notary Association in this
regard.
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8.2 The proposed code of conduct for Notaries would provide for a
code of ethics, as also the requirement of periodical training for Notaries. The code of
conduct for Notaries may also incorporate general provisions such as regular dos and
don’ts in respect of notarizing documents. This will enable Notaries to adapt to latest
developments in their field.
9. ADDITIONAL MEASURES :
9.1 As mentioned hereinabove, Notaries have started notarizing
documents from vehicles parked in a public parking lot instead of an office/chamber.
It has also been observed that Notaries have been operating from public taxis around
the vicinity of this Court.
9.2 It is therefore also recommended that this Court issue orders and
directions including to subordinate courts in Maharashtra prohibiting the aforesaid
practice. In support of this proposed prohibition, reference may be made to Rule 10(2)
of the Rules which provides that :
“The rates of fees to be charged by a notary shall be displayed by him in
conspicuous place inside as well as outside his chamber or office. "
(emphasis supplied)
9.3 Further, Rule 15 of the Rules provides :
“Each notary shall have an office within the area mentioned in the
certificate issued to him under Rule 8 and he shall exhibit it in a conspicuous
place there at a board showing his name and his designation as a notary.”
(emphasis supplied)
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9.4 A perusal of the aforesaid Rules indicate that the legislature,
whilst enacting the Act and Rules contemplated that Notaries would operate from
their office / chamber and certainly not from a public or private vehicle around the
vicinity of a Court.
9.5 It cannot be disputed that Notaries perform notarial acts around
the vicinity of Courts in India. The presence of Notaries in close proximity of Courts
is essential and ought to be recognized. Therefore, it is recommended that Notaries be
provided with a designated place in and around the premises of Courts without
Notaries having to incur the costs towards purchasing / renting an office / chamber.
37. We have considered the submissions of the Learned Amicus Curiae Mr.
Kohli and have given due consideration to his comprehensive Report covering the
prevalent law in India and the recent developments across the World, including in the
United States of America. In our considered opinion, undoubtedly, the Act and Rules
framed thereunder are in pressing need for major reform. We are, on a daily basis,
coming across matters wherein Notaries, Advocates and Parties are mischievously
getting documents notarized. However, we are now pleased to note that the Draft Bill
has been published proposing digitization of the records of a Notary and digitization
and automation of notarial work undertaken by Notaries. We would like to believe that
by the use of Information Technology, the prevalent mischief will be reduced to a great
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extent.
38. In the circumstances aforesaid and considering that the Department of
Legal Affairs has invited comments and suggestions on the Draft Bill by December 15,
2021, we deem it appropriate that the Registrar General of this Court forthwith
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forward a copy of this Order alongwith the Report dated 9 December, 2021
submitted by the Learned Advocate Mr. Nausher Kohli, to the Department of Legal
Affairs for their due consideration. We request the Department of Legal Affairs to give
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due consideration to this Order and the Report dated 9 December, 2021 submitted by
Mr. Nausher Kohli, Learned Advocate whilst enacting the Draft Bill.
39. Writ Petition No.4947 of 2021 alongwith Intervention Application (St)
No.18348 of 2021 and Suo-motu Contempt Petition No.1 of 2021 stand disposed off.
Commercial Appeal (L) No.23906 of 2021 alongwith Interim Applications taken out
therein also stand disposed off.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
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