JAY JITENDRA NANDHA vs SUB-REGISTRAR, KHANDAGIRI

THE above noted thirteen complaints are analogous. THE facts of each case are similar. THE point of law involved in all the cases is the same. THErefore, they were all heard together and are disposed of by this common order.

WE need not narrate facts of each case. For the sake of convenience, we mention only the facts relating to C.D. Case No. 51 of 2005. The petitioner alleges that the Sub-Registrar, Khandagiri-opposite party No. 1 has committed deficiency in service by not returning to him the registered sale deed. The case of the petitioner is that he purchased a piece of land measuring 620 sq. ft. in Mouza Nayapalli for consideration of Rs. 80,000 from one Prakash Chandra Bhura vide sale deed No. 4129 dated 30.5.2000 registered in the office of the opposite party No. 1. He paid a sum of Rs. 1,618 towards the fees for registration. As honest purchaser, Rs. 80,000 was paid to the seller. It being the actual price of the land, he has mentioned the same in the sale deed as the consideration amount. Sub-section 2 of Section 61 of the Registration Act, 1908 provides that after registration of the document is complete, the same shall be returned to the person, who presented the same for registration. Although the law requires the opposite party No. 1 to return the sale deed to the petitioner after it was registered, he instead of doing so, is sitting over the matter. According to the petitioner this amounts to deficiency in service on the part of the opposite party No. 1. He states that he is a consumer since he had paid fees for getting the document registered and non-return of the document amounts to deficiency in service on his part. The Sub-Registrar, who is the contesting opposite party No. 1, has not filed his written version. Mr. Das, learned Additional Standing Counsel appearing for him has produced before us copy of the parawise comments. We have taken the parawise comments on record and treated the same as his written version.

It is the submission of the learned Additional Standing Counsel that petitioner cannot be regarded as consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. The officers appointed under the Registration Act, 1908 do not render any "service" within the meaning of Section 2(o) of the Consumer Protection Act. In this connection, he placed reliance on the judgment of the Supreme Court in S.P. Goel v. Collector of Stamps, Delhi, AIR 1996 SC 839. The learned Additional Standing Counsel has also referred to a decision of this commission in Nilamani Swain v. Collector, Cuttack, III (1998) CPJ 177=1998 (1) OLR (CSR) 32 in support of the aforesaid submission. The learned Additional Standing Counsel contended that the sale deed cannot be returned to the petitioner because during scrutiny it was found that the market value of the property was not truly reflected in it and, therefore, after registration the Registering Officer has referred the documents to the Stamp Collector under Section 47(A) of the Indian Stamp Act, 1899 to determine the market value of the land. In view of such reference, the registration cannot be held to be complete and the deficit stamp duty and registration fees are to be realised from the concerned party under Section 47(A) of the Indian Stamp Act, 1899. Mr. R.P. Dash, learned Counsel for the petitioners on the other hand submitted that a sum of Rs. 1,618 was paid as fees for getting the sale deed registered and as per Sub-section (2) of Section 61 of the Registration Act, 1908, the Registration Authority is bound to return the document to him. He further submitted that Section 47(A) of the Indian Stamp Act, 1899 was inserted by Orissa Amendment Act, 1962, which is a State law. It directly comes in conflict with the provisions of the Central Act and, therefore, the Central Act prevails over the State law. The petitioner has availed the services of the opposite party No. 1 for consideration, which has been paid and, therefore, he is a consumer within the meaning of Section 2(1)(d)(ii) of the Act.

WE have carefully considered the rival contentions of the parties. WE have also perused the judgment of the Supreme Court in the case of S.P. Goel (supra). In that case S.P. Goel presented a document, which was said to be a "Will" for registration before the Sub-registrar, New Delhi. Instead of registering the document, the Sub-Registrar impounded it as he was of the view that it was not a "Will" but a deed of conveyance which was not duly stamped. He, therefore, sent the document in original to the Collector of Stamps for action under Section 40 of the Stamps Act. The Collector of Stamps issued notices to the concerned parties. After notice, Goel appeared before the Collector of Stamps, who was told by the Collector that the document was not a "Will", but a conveyance deed and, therefore, he was required to furnish the valuation report, receipts, etc. so that the document may be required to be properly stamped and registered. While the matter was pending before the Collector of Stamps, Goel filed the complaint under the Consumer Protection Act, 1986 before the District Forum claiming registration of the "Will" and for other reliefs. The District Forum allowed the complaint which was upheld by the State Commission, but was reversed by the National Commission which held that Goel was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. From paragraph 38 and onwards of the judgment, it appears in that case, the Collector alone was made a party in the complaint, but not the Registering Officer, whose action in impounding the document was under challenge. The Supreme Court after considering the relevant provisions of the Stamps Act held that a document or instrument, which is not duly stamped, will not be registered and the Sub-Registar, before whom the document is presented may refuse its registration and even impound it. Their Lordships further observed that the power to impound the document under Section 33 of the Stamp Act, which is not duly stamped, is also available to the Courts. Unless a document is not properly stamped, it will not be admitted in the evidence nor shall be acted upon. As in that case, Collector alone was made a party in the complaint, Their Lordships observed that his action is protected under Section 86 of the Registration Act, unless it was done maliciously. In the case at hand, there is no dispute that the sale deed was registered. All the formalities required under Sections 59 and 60 of the Registration Act have been complied with. Even in the receipt (Annexure-3), "1.6.2002" was indicated as the date of return of the document to the petitioner. As has been already mentioned, Sub-section (2) of Section 61 of the Registration Act clearly lays down that after registration of the document is complete, the same shall be returned to the person, who presented it for registration. In view of the admitted fact that all the requirements under Sections 59 and 60 have been complied with and the sale deed has already been registered the contention of the opposite party No. 1 that the registration is not complete and the question of return of the same to the presenter does not arise, is misconceived in law. The Supreme Court while considering the meaning of deficiency in service, as mentioned in Section 2(1)(o) of the Consumer Protection Act, 1986, in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=AIR 1994 SC 787, inter alia observed as follows: "xxx xxx But the Legislature did not stop there. It expanded the meaning of the word further in modern sense by extending it to even such facilities as are available to a consumer in connection with banking financing etc. Each of these are wide activities in day-to-day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied there is no reason to hold that authorities created by the statute are beyond purview of the Act."

(Emphasis supplied) The petitioner has paid a sum of Rs. 1,618 as the fees for getting the sale deed registered. A receipt has been granted to him stating therein that the document shall be returned to him on 1.6.2002. The said endorsement in the receipt is in terms of Sub-section (2) of Section 61 of the Registration Act, 1998, which unequivocally states that after registration is complete the document will be returned to the person who presented the same for registration.

ON considering the facts and circumstances of the case and for the reasons mentioned above, we are of the opinion that the petitioner is a "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and the opposite party No. 1 is guilty of deficiency in service in not returning the document to the petitioner. We may also refer to the case of Nilmani Swain (supra) cited by the learned Additional Standing Counsel. It was a case in which stamp duty was paid for getting certified copy. There is clear distinction between "fee" and "duty". Fee is paid in lieu of service. The present case being a case of payment of "fees" and not a case of "duty", the ratio as laid down by this Commission in Nilamani Swain (supra) is not applicable. Regarding referring the document under Section 47(A) of the Indian Stamp Act to the Collector we may examine Section 47(A) of the Indian Stamp (Amendment) Act, which is quoted hereunder: "If the Registering Officer appointed under the Indian Registration Act, 1908 while registering any instrument transferring any property has reasons to believe that the value of the property or the consideration as the case may be has not been truly set forth in the instrument he may after registering such instrument refer the same to the Collector for determination of the value or consideration as the case may be and the proper duty payable thereon.

(2) On receipt of a reference under Sub-section (1) the Collector shall after giving the parties a reasonable opportunity of being heard and after holding an inquiry in such manner as may be prescribed by rules made under this Act, determine the value or consideration and the duty as aforesaid and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty."

From the above, it may be seen that the Registering Officer while registering any instrument transferring any property has reason to believe that value of the property is under valued, he may after registering such instrument refer the same to the Collector for determination of the value, of the property, and proper duty payable thereon. It does not state that till the reference is decided by the Collector as to the valuation of the property, the instrument shall not be returned to the presenter, who presented it for registration. As we have already stated that non-return of the documents/sale deeds to the petitioner is contrary to Sub-section (2) of Section 61 of the Registration Act and, therefore, the action of the opposite party No. 1 amounts to deficiency in rendering service.

MR. R.P. Dash, learned Counsel for the petitioner fairly submits that the instruments would be submitted to the Competent Authority, whenever the petitioner would be called upon to do so. We have taken note of his submission and keep the same on record.

FOR the reasons mentioned above, all the complaints are hereby allowed. The opposite party No. 1 is directed to return the sale deeds, to the petitioner which have already been registered within four weeks of production of this order, after obtaining undertaking from each of them that they would return the same to the competent authority, whenever they would be called upon to do so. No costs. Complaints allowed.