State Consumer Disputes Redressal Commission
Registrar, Cooperative Societies vs Dipendra Singh Malka Advocate on 24 May, 2023
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.26 of 2022
Date of Institution : 12.01.2022
Date of Reserve : 17.05.2023
Date of Decision : 24.05.2023
Assistant Registrar, Cooperative Societies, Mohali, Verka Milk
Plant, SAS Nagar, Mohali (Punjab)
....Appellant/Opposite party
Versus
Dipendra Singh Malka, Advocate, #483, Sector 127, Shivalik City,
Kharar-Landran Highway, Greater Mohali-140307.
.....Respondent/Complainant
First Appeal under Section 41 of the Consumer
Protection Act, 2019 against the order dated
25.10.2021 passed the District Consumer Disputes
Redressal Commission, SAS Nagar, Mohali.
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh.Harbans Sharma, Advocate For the respondent : Ex-parte HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This appeal has been preferred by the appellant/opposite party- Assistant Registrar, Cooperative Societies, Mohali, against the order dated 25.10.2021 passed by the District Consumer Disputes Redressal Commission (in short 'District Commission'), First Appeal No 26 of 2022 2 SAS Nagar, Mohali, whereby the complaint filed by the complainant was allowed and opposite party was directed to pay Rs.5,000/-
towards compensation for harassment, mental agony and litigation costs within a period of 30 days from the date of receipt of certified copy of the order.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. In nutshell, the facts of the complaint filed before the District Commission are that the complainant is an Advocate by profession applied for the certified copy of certain documents from the opposite party by paying a fees of Rs.100/- through postal Order No.53H 451330. The complainant demanded for the certified copy of the letter No.6028 of 11.08.2015 regarding the attachment of House No.1018, Phase -3B2, Mohali and also certified copy of the NOC of the same house but despite the number of visits to the office of the opposite party they failed to supply the certified copies. Alleging deficiency in service on the part of the opposite party, the complainant filed the complaint seeking Rs.50,000/- as compensation as well as litigation expenses.
3. Upon notice, opposite party filed reply denying the submissions of the complainant and also submitted that the complaint is bad for mis-joinder and non-joinder of the necessary parties. Also alleging that the office of Registrar of Cooperative Society do not exist in the State of Punjab nor in SAS Nagar. The complaint is totally frivolous.
First Appeal No 26 of 2022 3
4. The parties led their evidences in support of their respective contentions before the District Commission and after hearing learned counsel for the parties, the complaint was allowed, vide impugned order dated 25.10.2021.
5. Aggrieved by the said order, this appeal has been filed by the appellant/opposite party for setting aside the impugned order dated 25.10.2021 and to allow the appeal.
6. Notice of the appeal was issued to the respondent through Registered Post but despite service neither the respondent nor any representative is appeared on his behalf, therefore, he was proceeded against ex-parte, vide order dated 04.03.2022.
7. We have heard the contentions of the appellant/opposite party and have carefully gone through the record as well as written arguments filed by the appellant/opposite party. We have also given our thoughtful consideration to the same.
8. Learned counsel for the appellant/opposite party submitted written arguments and also orally contended that the Cooperative Society, Punjab do not exist in the State of Punjab, even if the Government is holding 50% of share. During the course of arguments, learned counsel for the appellant/opposite party admitted that the respondent/complainant applied for the certified copy of certain documents and also deposited the required fee of Rs.100/- through postal order but those copies can only be received under the Act i.e. Punjab Cooperative Societies Act, 1961 and as per this act, the complainant is not a consumer. He further submitted that though the respondent/complainant applied for First Appeal No 26 of 2022 4 certified copy of documents regarding H.No.1018, Phase 3B2, Mohali and also a copy of NOC, which is a third party information and third party has filed objections not to supply the information related to his house as it was his personal information within meaning of Section 8(1)(j) of RTI Act so, this complaint is not maintainable. He also referred to the authority of Hon'ble Supreme Court passed in the case of S.P.Goel Vs. Collector of Stamps Delhi 1996 (1) SCC 573 alleging that all the functions performed by the appellant/opposite party are governed by statutes and are statutory administrative functions so the supply of certified copy is not included in terms of the provisions of Consumer Protection Act.
9. From the above said contention of the learned counsel for the appellant/opposite party, it can be construed that the main plea of the appellant is that the information sought by the respondent/ complainant qua the House No.1018, Phase 3B2, Mohali, which was a third party information and third party files the objection not to supply any information regarding the property to any outsider so the information was not supplied. Surprisingly, the careful perusal of the written statement and the stand taken by the appellant/opposite party before the District Commission reveals that no such contention was ever raised by them before the District Commission that information sought by the respondent/ complainant was qua the private property and it was a third party information. They simply denied the contentions of the respondent/complainant on flimsy grounds. Had this issue been raised before the District Commission then opportunity should have First Appeal No 26 of 2022 5 been given to the respondent/complainant to rebut all these contentions. By not raising these contentions before the District Commission, the plea of the learned counsel for the appellant at this stage is totally irrelevant and is not tenable in the eyes of law. Even, in the grounds of appeal, they have not mentioned a single word that the information sought by the respondent/complainant was third party information and third party filed objections qua the same. No such objections of the third party have been shown in writing at all till today for not supplying the information to respondent/complainant. So this ground of the appellant/opposite party is unwarranted and uncalled for and is devoid of merit.
10. With regard to the other contention of the appellant/opposite party that they are governed by statutes and they are performing their duties under the statute of sovereign duties, which does not attract the Consumer Protection Act and does not fall under the provisions of the Consumer Protection Act as a service provider. This plea of the learned counsel for the appellant/opposite party also appears to be misconceived. The sovereign and non- sovereign duty is wholly described by the Hon'ble National Commission in its Ruling in Revision Petition No.2135 of 2020 titled "Shri Prabhakar Vyankoba Aadone Vs. Superintendent, Civil Court" and it is important to elaborate the same in word to word as under:
"4. The two issues framed by the District Forum were:
1. Whether the Complainant is a consumer within the meaning of the Act?First Appeal No 26 of 2022 6
2. Whether there is any deficiency in service of the opponent?
5. The issues which were answered by the District Forum were as under:
(1) It was obligatory on the part of the opponent to give the copy in three days, as the fees which was paid was for urgent charges. "The Complainant is a consumer and he has a right to get services in the form of copies". (2)(a) There is deliberate negligence on the part of the Respondent which may be termed as deficiency in service (b) The papers of Complainant were received on 12.8.1994, the xerox machine of civil court was not working from 18.8.1994. In these circumstances after receiving the papers on 12.8.1994 and the application of Complainant being urgent and extra fee was paid, then there is no reasonable explanation by the opponent as to why the copies were not prepared between 12.8.1994 to 18.8.1994.
(c) It is not understandable as to why the papers were not sent to the criminal court between 18.8.1994 to 30.9.1994. Thus, it evidently shows that there is an inordinate delay in giving the copies.
(d) Giving of certified copies is not a judicial service, but it is an administrative service.
6. The Respondent filed Appeal No. 532/1998 before the State Commission, Maharashtra. On the date of the hearing of the appeal, neither the appellant nor the Respondent were present. Nevertheless, the State Commission by its order dated 19.7.2000 allowed the appeal holding that:
"The Appellant being a Government Agency was exercising sovereign function and any deficiency in service, assuming there are, are not amenable to the jurisdiction of consumer fora functioning under First Appeal No 26 of 2022 7 the Consumer Protection Act, 1986. To be precise, the duties being discharged were under the sovereign functions and are immune therefrom".
7. The Petitioner filed the present petition before this Commission under Section 21(b) of the Consumer Protection Act, 1986. By its order dated 4.9.2001 this Commission formulated the following question which arose for decision in the case:
"Is the supply of certified copy by copying agency of a civil court a sovereign function or is it rendering of 'service' under the provisions of the Consumer Protection Act?"
It is further mentioned as under:
"9. The term 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 ('Act') contemplates any service which is rendered for a consideration. Such services may be for any commercial activity and may also relate to any of the service as indicated under Section 2(1)(o) of the act. For instance, a subscriber to a Provident Fund scheme has been held to be a consumer and the processing of his claim by the Regional Provident Fund Commissioner to be a service within the meaning of the Act. (Regional Provident Fund Commissioner v. Shiv Kumar Joshi (2000) 1 SCC 98.
10. The decision of the Hon'ble Supreme Court in S.P. Goel v. Collector of Stamps, Delhi (1996) 1 SCC 573 which held that, a person who presents a document for registration and pays stamp duty does not become a consumer and that the officers appointed under the Indian Stamp Act, 1899 do not render any 'service' under the Consumer Protection Act is in the context of the finding of the court that Collector of Stamps performs a judicial function. The decision itself indicates First Appeal No 26 of 2022 8 that "as far as the officers of the court are concerned the position is a little different". In S.P. Goel, the Supreme Court was not considering the question of 'other officers'. It is significant that the above decision has been noticed in the later decision in Regional Provident Fund Commissioner v. Shiv Kumar Joshi (2000) 1 SCC 98 @ 105 where it was held that the facility provided by the Regional Provident Fund Commissioner is a 'service' under the Act.
11. Any person who pays money as the price or cost of goods and service is covered under the comprehensive definition of the word 'consumer'. (Morgan Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225 @ 239, para 26. Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 @ 253 and 255.
12. The application for the certified copy of an order made by a court, its processing and its delivery are governed by statutory provisions. In particular, the following statutes and rules apply:
(i.) Code of Civil Procedure, 1908: Order XX Rule 20 and the rules made thereunder.
(ii.) Rules of the concerned High Court regarding application for certified copies and the preparation and delivery of such copies.
(iii.) The Court Fees Act, 1870, Section 6 read with Schedule I (Entry No. 6) thereof. The above functions are governed by statutes and are statutory/administrative functions. Thus, the failures/omissions in the performance of these functions is amenable to judicial review.
13. It may be noted that the concept of sovereign function has undergone changes and in a welfare state, where the activities of the government extend to several spheres, the distinction between sovereign and First Appeal No 26 of 2022 9 non-sovereign for the purpose of immunity has largely disappeared. (N. Nagendra Rao v. State of A.P. (1194) 6 SCC 205 @ 235, pr. 25; Common Cause v. Union of India (1999) 6 SCC 667 @ 716; Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465 @ 485, pr.
41, and State of A.P. v. Challa Ramkrishna Reddy (2000) 5 SCC 712 @ 726-727.
14. While judicial officers may be protected from being arrayed in legal proceedings for their judicial function, (eg. See Section 28 of the Act) they do not enjoy such immunity for the administrative functions performed by them or by their staff. For instance, the functions performed by High Court in its administrative side are amenable to judicial review in its judicial side. See R.C. Sood v. High Court of Rajasthan (1994) supp. 3 SCC 711; High Court of Judicature, Rajasthan v. Ramesh Chandra Paliwal (1998) 3 SCC 72 @ 85, para 30.
15. The grant of certified copies of orders of courts is not a sovereign function but is an administrative function. Since this is not a judicial function, it does not partake the character of a 'sovereign function'.
16. We are, therefore, of the considered opinion that an applicant for certified copy of a judicial order, who deposits a fee for obtaining such copy is a "Consumer"
within the meaning of the act and the proceeding of such application and the preparation and delivery of the copy in consideration of the copying charges/fee by the concerned staff attached to the court would be a service within the meaning of the Act."
11. In view of the above discussions and as per the law laid down, we do not find any force in the appeal to interfere in the First Appeal No 26 of 2022 10 order of the District Commission. Accordingly, the same is hereby dismissed and the order of the District Commission is upheld.
12. The appellant/opposite party had deposited a sum of Rs.2,500/- at the time of filing of the appeal. This sum, along with interest accrued thereon, if any, shall be remitted by the Registry to the District Commission after the expiry of 45 days of the sending of certified copies of the order to them. The concerned party may approach the District Commission for the release of the above amount to the extent of his/its entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER May 24th ,2023 parmod