Termite eating notary records not Act of God!

A notary taking huge money through attestations cannot so negligently leave registers as food to termites. Notaries and Regulatory should understand that it amounts to irresponsibility towards records and inaction after the negligence is detrimental to ‘governance’.

Appointment of Advocate as notary means that he/ she is an agent of the Government, to attest documentation on its behalf. The Department of Legal Affairs is ‘the concerned authority’ in appointing, regulating activities of notary, renewing and removing for misconduct. Preservation of records is the primary responsibility of the notary and this public authority, under Notary Act, Public Records Act and RTI Act

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Nand Lal wanted information from notary. He filed a request under the RTI Act. His contention was that his immovable property was fraudulently transferred by an advocate, and document concerned was attested and authenticated by Advocate-Notary appointed by Department of Legal Affairs; that in 2015.

Notary refused to give this information claiming it as third party information under the RTI Act. When CIC directed that it should be disclosed she raised the excuse that records were lost due to termites. Appellant sought notarisation details of documents dealing with some property transactions of that period to verify the document; that if that proved false, he would suffer huge loss.

The PIO and notary claimed that records were eaten by termites. CPIO did not inform the Commission whether any response was given to this letter and action was initiated by the public authority on non-response. It is relevant here to note that appellant wrote to first appellate authority that Notary refused to divulge information.

Passing an interim direction to public authority to (i) to furnish a) list of Notary registers damaged by termite, b) list of those survived termite attack and c) partially damaged registers, (ii) to furnish report of inquiry and action taken report on loss of registers due to termite, along with the names of notaries and officers responsible for this serious negligence, whether the notary, the custodian of their registers, if reported to the CPIO about termite attack, along with relevant papers, what action was taken, and (iii) to produce remains of registers damaged by termite before the commission.

In response, CPIO of Ministry, and the notary and advocate presented to the Commission damaged register of past seven to eight years. Both claimed that there was no deliberate negligence. Though annual reports were given to him, but some lists of names and dates could not be provided as the registers were damaged. A notary taking huge money through attestations cannot so negligently leave registers as food to termites.

Notaries and Regulatory should understand that it amounts to irresponsibility towards records and inaction after the negligence is detrimental to ‘governance’. Appointment of Advocate as notary means that he/ she is an agent of the Government, to attest documentation on its behalf.

The Department of Legal Affairs is ‘the concerned authority’ in appointing, regulating activities of notary, renewing and removing for misconduct. Preservation of records is the primary responsibility of the notary and this public authority, under Notary Act, Public Records Act and RTI Act.

The chronology after RTI application shows that notary deliberately denied information, wanted to hide the fact of termite issue under the garb of ‘third party’, did not report to the authorities, did not even inform the appellant in the beginning.

There is nothing on record to show she has reported to the Department of Legal Affairs about damage caused by termites. She did not inform the court concerned about the damage. As an advocate she is supposed to know that ‘destruction of records by termite action’ is not a defence Section 8 of the RTI Act, or Notary Act or Public Records Act.

The Commission noticed breach of a major obligation under Notaries Act & Rules, and public authority was silent by not taking any action against the notary either for not furnishing the annual returns or not reporting the damage to registers or for negligently damaging records. The public authority should have some concern and questioned reckless loss of records, instead of defending negligence of notary.

Notary claiming experience of 25 years stated that the register of 2013 was partially damaged and record from 2008 was totally damaged by termites. The public authority could not show any system to protect extracts of register or to take action against negligent notaries. Both notary and CPIO claimed defence of ‘Act Of God’ while explaining in response to show-cause notice.

None can claim a defence which is not provided by RTI Act. General defence of ‘Act Of God’, available for civil liability for causing loss, cannot apply in this case. More so, the Act of God is a phenomenon which is attributed to an intervention of the forces of nature, beyond control of human being. Destruction of files by termites can never be claimed to be an Act of God because of conscious negligence on part of individuals, who shall be liable.

They have not shown any sign of regret for the loss of records due to termites. Unless proved that record was removed as per the prescribed rules of destruction/ retention policy, it has to be deemed that record continues to be held by public authority. Claim of ‘file missing or file not traceable’ or ‘eaten away by termites’ or by any other reason, has no legal base.

The ‘missing file’ means breach of Public Records Act, 1993 punishable with imprisonment up to a term of five years or with fine or both. The production of damaged register to the Commission strengthens the frivolous plea of the notary that record is lost by termites and obvious proof of negligence “res ipsa loquitor” (=things speaks for itself) of the notary and the Public Authority has a duty to initiate action.

The Public Authority also cannot ignore its duty to designate an officer as Records Officer and protect the records. Notary-advocate cannot take advantage of termite attack, claim innocence and escape duty to disclose information as per RTI Act. HCIC found that her written and oral representation reflected her negligent record management and carelessness towards access to information also.

Basic human foresight and prudence could reasonably anticipate the possibility of termites, and lack of it is certainly a ‘serious negligence’. Her explanation show cause notice was not satisfactory to CIC. This being a glaring example of poor record maintenance leading to “inaccess”, it is difficult for Commission to ignore this serious negligence, lethargy and complacence and finally imposed penalty of Rs 25,000 against the notary-advocate.

Commission also directed notary to provide annual return of 2008 along with attached documents and the first and last serial number of documents notarised within three weeks. Besides, the Commission also directed to pay a compensation of Rs 1,000 to the appellant within 30 days from the date of this order, for delaying and denying information, etc.

In addition to, the CIC has issued show cause notice to the PIO to explain for illegal defending the notary, saying that eating of records by termite was ‘Act of God’. She raised her voice to say notary did not invite termites to eat away the records. Officer from legal affairs is expected to know the basic point of negligent will be liable for loss and deliberate intention is required only in crime.

The claim of PIO that they were unaware of the fact that termite had destroyed the records, appears to be an after-thought and thus not acceptable. The record keeping also means preservation of public records.The Commission required, under Section 19(8) of RTI Act,

the public authority to have a system of securing records at notary, maintaining the annual reports submitted by notary in a systematic manner, taking action against non-furnishing of annual returns, not securing the records (leaving records to termites etc) and for not reporting the damage caused to records within prescribed time limit, etc, and also to have an alternative mechanism to provide the ‘information’ in such circumstances as faced by the appellant in this case, within six months.

The Commission directed public authority to submit report to the Commission regarding grievance of the appellant in light of the claim of destruction of this public record. (Based on the decision CIC/SA/A/2015/001769 in NandLal V Department of Legal Affairs on 3.5.2016)