Back
2007(1) CPR 476 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, CIRCUIT BENCH, CHENNAI
M.B. Shah, President; Mrs. Rajyalakshmi Rao, Member
The Joint Sub Registrar—Petitioner
versus
Tmt. Maragatham—Respondent
Revision Petition No. 1444 of 2004
Decided on 5-3-2007
Held: For the reasons recorded hereinafter we hold that the Joint Sub-Registrar or concerned officer could be proceeded under the Consumer Protection Act, 1986 in case of issuance of encumbrance certificate without noting all the relevant transfers, encumbrances or transactions with regard to immovable property. The reason is erroneous encumbrance certificate seriously prejudice the rights of the parties and increases litigations and disputes with regard to immovable property. (Para 2)
It is undisputed that in the present case there were apparent errors in noting down the transfers while issuing encumbrance certificate. (Para 7)
It is to be stated that in S. P. Goel’s case the Court has not differed. from the ratio laid down in the case of Lucknow Development Authority (supra). (Para 33)
From the ratio, as discussed in the aforesaid two cases it is apparent that if the statutory authority is discharging sovereign function as stated in the S. P. Goel’s case then the concerned officer cannot be proceeded under the Consumer Protection Act, 1986. But, if the officer is rendering statutory service on the basis of rules and regulations by charging fee he would be liable to be proceeded against under the Consumer Protection Act, 1986, because complainant avails of services by paying statutory fees. (Para 36)
The judgment in S. P. Goel’s case (supra) which is passed by the Apex Court and is sought to be relied upon is only with regard to registration of documents, which is a statutory function and mandatory requirement for effective transfer of immovable property. In that case the Registrar was exercising his quasi judicial function of deciding whether the so called ‘Will’ was a ‘Conveyance Deed’ or not. In his opinion it was a Conveyance Deed and, therefore, he impounded the same and sent it to the Collector, an Authority under the Stamp Act, for appropriate valuation of stamp duty. That action was challenged before the Consumer Fora and in that context the Court held that it was a statutory/sovereign function under the Act.
Secondly, even S. P. Goel’s case, it has been made clear that if there is deficiency in service by an act which is not bona fide or which is malicious, the Officer will not be protected. This view is taken on the basis of the decision rendered in Lucknow Development Authority (supra). If there is total negligence in discharge of duties it would amount to malice in law or in any case it cannot be termed as bona fide act.
In view of the aforesaid discussion, we hold that in case of deficiency in service in issuing erroneous and defective encumbrance certificate, the concerned officer including the Joint. Sub-Registrar would be liable for deficiency in service and could be proceeded under the Consumer Protection Act, 1986. Hence, we confirm the order passed by the State Commission, Tamil Nadu and dismiss the Revision Petition. There shall be no order as to costs. (Paras 41, 42 and 43)
Result: Revision dismissed.
M.B. Shah, President— The only question involved in this Revision Petition is:
Whether the Joint Sub-Registrar of the District Registrar’s Office can be proceeded under the Consumer Protection Act, 1986 for issuing erroneous encumbrance certificate under the Rules framed by the State of Tamil Nadu under Registration Act, 1908?
2. For the reasons recorded hereinafter we hold that the Joint Sub-Registrar or concerned officer could be proceeded under the Consumer Protection Act, 1986 in case of issuance of encumbrance certificate without noting all the relevant transfers, encumbrances or transactions with regard to immovable property. The reason is erroneous encumbrance certificate seriously prejudice the rights of the parties and increases litigations and disputes with regard to immovable property.
3. Issuance of encumbrance certificate is a service and facility to be provided under the statutory rules for fees.
4. Further, for carrying out search or for obtaining an encumbrance certificate, a person is required to pay prescribed fees; and, in case of emergent search, double the normal rates of the fees.
5. Under the Rules, the encumbrance certificate is required to contain complete list of encumbrances affecting the immovable property. At the time of search and for copying the entries, precautions are contemplated under the Rules and the search is required to be carried out in the presence of the registering officer.
6. In support of the aforesaid finding we would discuss the contentions raised by the parties in detail.
7. It is undisputed that in the present case there were apparent errors in noting down the transfers while issuing encumbrance certificate.
8. It is the case of the Complainant that she got encumbrance certificate for purchase of one plot and before purchase of the said plot she applied for encumbrance certificate. The same was issued by the Opposite Party, Joint Sub-Registrar, Palani, wherein only the sale transaction dated 15.2.1989 had been shown. Similar encumbrance certificate was issued to one Pichaikannu of Palani mentioning the above said sale transaction.
9. Thereafter, when the Complainant wanted to sell the said plot to one Raj Kumar, the said Raj Kumar applied for the encumbrance certificate from 1.1.1981 to 17.12.1996. In that certificate only a few encumbrances were mentioned. Believing, the said certificate to be true Raj Kumar purchased property from the Complainant by paying Rs. 89,000 and got it registered. When Raj Kumar went to take possession, one Ameer Amsa, son of Mohammed Sultan of Palani claimed that the property belonged to him and showed him the registered sale deed. Therefore, the said Raj Kumar again went and applied for another encumbrance certificate on 1.8.1997 in which some encumbrances were mentioned. Considering the aforesaid dispute the said Raj Kumar filed a Civil Suit OS No. 201 of 1997 against the Complainant on the ground that the Complainant committed fraud and cheated him. The Complainant was required to settle the matter by paying a large amount. Because of this deficiency in service in issuing encumbrance certificate without verifying the record the Complainant has suffered a considerable loss, expenses and loss of prestige. Hence the Complainant filed complaint being O. P. No. 77 of 1998 before the District Forum, Dindigul claiming a compensation of Rs. 3,00,000.
10. The District Forum by order dated 3.3.1999 dismissed the complaint on the ground that the Registering Officers were only performing statutory function while issuing encumbrance certificate and hence, for that, the complaint was not maintainable before the Consumer Fora.
11. Against that appeal, A. P. No. 337 of 1999 was filed by the Complainant before the Tamil Nadu State Consumer Disputes Redressal Commission. By the order dated 19th March, 2004 the State Commission allowed the appeal by observing that there was deficiency in service by the Joint Sub-Registrar in issuing erroneous encumbrance cert
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
