RAMAKANTA RATH vs ASSTT. REGISTRAR OF CO-OPERATIVE SOCIETIES, PURI

THIS is a complaint for a direction to pay compensation of Rs. 2,52,420/- to the complainant by the opposite parties for deficiency in service with regard to non-issuance of certified copies in execution proceeding case No. 26 of 1976-77.

CASE of complainant, in short, is that his advocate applied for certified copies which was not attended to and he also applied which was not attended. Complaint before the Registrar of Cooperative Societies and the State Government yielded no result and for more than three years he is not able to get the certified copies from the Assistant Registrar of Co-operative Societies, Puri. Opposite parties stated their case jointly. Their case, in short, is that non-supply of copies is not intentional. It is on account of non-availability of record from which the certified copy is intended to be taken. It is stated that neither the complainant nor his lawyer is entitled to certified copies in view of Rule 81 of the Orissa Co-operative Societies Rules made under the Orissa Co-operative Societies Act.

Both complainant and opposite parties have supported their cases by filing copies of documents. From the complaint petition, statement of the opposite parities and the documents filed, the following facts emerge. There was a dispute case before the Assistant Registrar of Co-operative Societies bearing number Dispute Case No. 1278 of 1971-72 where an award was passed. This award was executed in Execution Case No. 20 of 1976-77. A building in Puri town over an area of 272 decimals of land in Holding No. 924/2 in Ward No. I of Puri Muncipality appertaining to Khata No. 33 Plot No, 853 was sold in execution. After the sale, Execution Case was closed in January, 1980. The Execution Case record in the office of the Assistant Registrar was in custody of Chintamani Mishra, Inspector of Co-operative Societies. Shri Mishra handed over charge of the record to Mrityunjay Hota on 31.8.1981. Hota died on 8.9.1987 while in service. After the death of Hota, the records were not traceable. One of the co-sharers filed a suit for partition in the Court of the Subordinate Judge, Puri, bearing number O.S. No. 198 of 1987 against the other cosharers including complainant. When complainant knew about the same from the daily Samaj, he appeared in the suit and came to know that Plot No. 853 has not been included. Coming to know that the same though joint family property has been excluded, he made inquiry and learnt that the same has been sold. Thereafter, to content the suit he made an application for certified copies of various documents in the Execution Case through Shri T.K. Sen, Advocate, on 25.6.1988. Towards the fees, he deposited Rs. 5/- in the State Bank of India, Cuttack, vide Treasury Challan bearing No. 26 dated 22.6.1988 which was enclosed to the application. In January, 1989 when Shri Sen went to the office of Assistant Registrar, Puri, he was intimated that the number of the case is not ''2'' but ''20''. Thereafter, he made an application on 19.1.1989 wherein it was requested to treat the treasury chalan to be the cost in this case. This was received on 21.4.1989. When no copy was received, Sri Sen again appealed for a copy with another treasury chalan of Rs. 5/- on 29.4.1989. Thereafter, he sent a letter on 1.5.1989 that the copy was urgently necessary. When all the attempts to get a copy failed, complainant filed an application before the Registrar on 17.6.1989 for direction to get the same. On the vary date, Registrar directed Assistant Registrar to furnish the copies within ten days. Copy of the order was communicated to the Assistant Registrar on 19.6.1989. On 17.7.1989, Assistant Registrar intimated the Registrar that the copy is not available in spite of search of the record. It was, however, stated that the copy applied for will be issued as soon as it was traced out. When the copies were not received on 23.8.1989, complainant filed an application for imposition of punishment on the Assistant Registrar on account of noncompliance of the order and to supply copies within seven days. On 17.3.1990, Registrar passed an order to ask the Assistant Registrar to produce the certified copy before him or to certify otherwise by 24.3.1990. Thereafter, the application was heard. It was held that the inability to supply certified copy was not on account of any deliberate intention but due to non-availability of records. It was also found that such non-availability was intimated from time to time to the complainant. Against this order dated 21.4.1990, complainant has filed a revision before the Additional Secretary which is yet pending.

IT has been held by this Commission in a decision reported in II (1991) CPJ 337=1991 CPR 24 (Chintamani Mishra v. Tahasildar, Khandapra & Ors.) that grant of certified copies is a service rendered. Therefore, non-supply of the certified copy in absence of any explanation within a reasonable time, is deficiency in service. Whether there is deficiency in service, is a question of fact which would depend upto the facts and circumstances of each case. To consider whether there is deficiency, the meaning of the word is to be kept in mind which is defined in Sec. 2(g) of the Consumer Protection Act (in short, ''the Act''). It reads as follows: "2(g) ''deficieny'' means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"

The plain meaning indicates that any fault, imperfection, short coming or inadequacy in the nature and manner of performance is deficiency.

IN the present case, Assistant Registrar is not able to supply the copies on account of non-availability of the record. He has explained that the officer, who was in charge of the record, is dead where after the record is not traceable. He claims to have been making search for the same in the Record Room. He found that the Record Room is leaking and many records have been damaged. He suspected that this record might have been damaged. He has explained that in spite of approach on the Public Works Department, the roof is not being repaired. IN such circumstances, the non-supply being beyond the control of the Assistant Registrar, he cannot be held to be in fault or imperfection in the matter of supply of certified copy. It has been held by the National Commission in the decision reported in I (1992) CPJ 18 (NC)=1991 (1) CPR 263 (Consumer Unity and Trust Society, Calcutta v. The Chairman and the Managing Director, Bank of Baroda) that inability to render service due to the reasons wholly beyond the control of the person required to render the service, is a case which falls within the well known exception of force majeure and would not be a deficiency in service. Therefore, we are inclined to hold that there is no deficiency on the part of the Assistant Registrar in this case. Complainant has approached the State Government in its statutory power of revision under the Orissa Co-operative Societies Act which is pending. A person should not be allowed to move two forums simultaneously for the same relief. Such revision having been filed earlier where effective remedy would be available to the complainant, the same would also be a ground for refusal of any relief even if the same would have been available. Before parting, it is desirable to express our unhappiness in respect of the manner in which records involving rights and liabilities of persons are maintained in the office of the Assistant Registrar of Co-operative Societies, Puri. No Republic can develop in case the organisations, which have already been set up, are allowed to function improperly. In spite of it, there may be cases which would cause difficulties. Those would, however, be rare occasions. In case the records are damaged or not traceable, steps should be taken to reconstitute the same as far as practicable. We hope that in the revision pending before the State Government, this aspect of the matter would be taken care of.

IN result, there is no merit in this complaint which is accordingly dismissed. Complaint dismissed.