Chandigarh

DF-II

CC/421/2018

Rakesh Kumar - Complainant(s)

Versus

Chandigarh Housing Board - Opp.Party(s)

Adv. Ambrish Sharma

22 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

 

Consumer Complaint  No	:	421 of 2018
Date  of  Institution	:	31.07.2018
Date   of   Decision	:	22.01.2019

 

 

 

 

 

Rakesh Kumar S/o Sh.Sukhdev, Aged 46 years, R/o H.No.3240, Sector 40-D, Chandigarh.   

 

            Complainant

Versus

 

1]  Chandigarh Housing Board (A Chandigarh Administration Undertaking) through its Chairman, 8 Jan Marg, Sector 9, Chandigarh.

 

2]  The Secretary, Chandigarh Housing Board, through its Chairman, 8 Jan Marg, Sector 9, Chandigarh.  

   

 Opposite Parties

 

BEFORE:  MR.RAJAN DEWAN            PRESIDENT

MRS.PRITI MALHOTRA        MEMBER

                    MR.RAVINDER SINGH         MEMBER

           

 

Argued By: Sh.Ambrish Sharma, Adv. for complainant.

Sh.Pushpinder Singh, Adv. proxy for Sh.Vikas Jain, Adv. for OPs.  

 

 

PER RAVINDER SINGH, MEMBER

 

                    The case of the complainant is that on 22.11.2007, the complainant purchased a LIG Dwelling Unit/H.No.3240, Sector 40-D, Chandigarh from Mrs.Kulvir Kaur, on the basis of Sub-GPA.  The said Kulvir Kaur had purchased the said house on the basis of GPA from its Original Allottee Sh.Telu Ram s/o Nirmal Singh on 16.7.2003.  It is stated that the complainant is in physical possession of the said house since Nov., 2007.  It is averred that the OPs vie letter dated 15.6.2017 offered a scheme to allow the transfer of GPA transfer policy on the basis of GPA (Authority to manage) + SPA (Authority to Sell) and agreement to sell, subject to payment of required fee (Ann.C-6).  Accordingly, the complainant submitted an application to the Opposite Parties on 1.12.2017 with all requisite documents for transfer of house in question in his name and as per the advice of OPs, also deposited an amount of Rs.2,19,906/- (Ann.C-9) on 8.12.2017.  On 9.12.2017, the OPs publish a public notice in newspaper for transfer of house in question in the name of complainant and on 18.12.2017 they raised demand for supply of original SPA (selling power),which was duly submitted (Ann.C-10 & C-11).  It is stated that in response to letter dated 3.1.2018, the complainant also visited the office of Opposite Parties and complete all the formalities/scrutiny of case to get transfer of his dwelling unit in his name, but later on, the Opposite Parties vide letter dated 6.2.2018 (Ann.C-13) intimated the complainant that in view of circular dated 19.12.2017 adopted by Opposite Parties vide order No.5, dated 10.1.2018, they have discontinued the GPA process cases under GPA Policy of CHB.  Thereafter, the complainant made representation to the Opposite Parties made transfer, but they did not pay any heed.

         It is submitted that the Opposite Parties opted the said policy on 10.1.2018, whereas the complainant applied for transfer of Dwelling Unit on 1.12.2017, deposited the amount on 8.12.2017, as such the order of OPs No.5, dated 10.1.2018 and Circular dated 19.12.2017 is not applicable in the case of complainant.  It is also submitted that moreover, as per Circular of OPs dated 15.6.2017, the Opposite Parties are bound to issue transfer letter subject to publication, within 5 days in the name of complainant from the date of receipt of application.  However, despite all that, the Opposite Parties are not transferring the house in question in the name of complainant.  Hence, this complaint has been filed alleging deficiency in service on the part of OPs.

 

2]       The Opposite Parties have filed joint reply and while admitting the factual matrix of the case, stated that the complainant has mentioned that he purchased the property in question from Mrs.Kulbir Kaur wife of Anek Singh on the basis of Sub GPA and said Kulbir Kaur has purchased it on the basis of GPA from original allottee Sh.Telu Singh son of Late Sh.Nirmal Singh, which itself is illegal and against the law.  Moreover, the name of the original allottee is Telu Singh and there is no Telu Ram son of Nirmal Singh.  It is submitted that while perusing the General Power of Attorney dated 16.7.2003 given by original allottee Sh.Telu Singh in favour of Sh.Kulbir Singh, no power of sale has been given and while perusing Special General Power of Attorney given by Kulbir Kaur in favour of Rakesh Kumar, no power of sale has been given and only management attorney has been given on 22.11.2007.  It is also submitted that the complainant cannot misuse Tatkal Scheme and without completing chain of documents, cannot get the property transferred under the garb of Tatkal Scheme.  It is stated that Opposite Parties have the responsibility to transfer the property to any person after completing all necessary formalities and being satisfied that there is no hanky-panky in the papers and the chain of transaction are complete. It is stated that as per Circular dated 19.12.2017, the property cannot be transferred under GPA Policy and moreover, the complainant has submitted copy of SPA and also filed indemnity bond stating that SPA was not executed.  It is also stated that while perusing the documents submitted by complainant, no power of sell has been given by the original allottee in General Power of Attorney dated 16.7.2003 in favour of Kulbir Kaur.  It is further stated that Opposite Parties have received the said circular/order from Chandigarh Administration to form the uniform practice/procedure to regulate the transfer of properties by way of GPA/SPA/Will, (GPA transaction) and the said circular has been issued in pursuance of the direction issued by Hon’ble Supreme Court of India in case of Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana as well as interim order dated 29.8.2017 in case titled Avneet Kaur Vs. State of Punjab (Ann.R-1).  Denying all other allegations, the Opposite Parties have prayed for dismissal of the complaint.

 

3]       The complainant filed rejoinder reiterating the contentions made in the complaint.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the learned Counsel for the Parties and also carefully examined the entire evidence on record.

 

6]       The LIG Dwelling Unit No.3240 in Sector 40-D, Chandigarh was allotted to Sh.Telu Singh on 1.7.1981 on Hire-Purchase basis vide Registration No.7158 by Chandigarh Housing Board.  Sh.Telu Singh sold out the said Dwelling Unit to Smt.Kulbir Kaur w/o Anek Singh for an amount of Rs.3,50,000/- vide Agreement to Sell dated 16^th July, 2003 (Page No.23 to 25) and also executed General Power of Attorney and Will in favour of Smt.Kubir Kaur w/o Anek Singh dated 16^th July, 2003 (Page 19 to 22). 

 

7]       Smt.Kulbir Kaur further sold out the said Dwelling Unit No.3240, Sector 40-D, Chandigarh to Sh.Rakesh Kumar s/o Sh.Sukhdev, for an amount of Rs.15,80,000/- vide Agreement to Sell dated 22th Nov., 2007 (Page 29 & 30) and also executed Sub General Power of Attorney dated 22.11.2007 in favour of Sh.Rakesh Kumar (Page 26 to 28). Smt.Kulbir Kaur handed over the physical possession of the dwelling unit in question to Sh.Rakesh Kumar, complainant, at the time of execution of agreement to sell and Sub General Power of Attorney  on 22.11.2007 itself.

 

8]       The complainant applied to the Chandigarh Housing Board/Opposite Parties with reference to their Scheme for Transfer of Dwelling Unit in his name on 7.12.2017 vide his application (page 34 to 37).  On the demand of Chandigarh Housing Board, the complainant accordingly deposited the following amount:-

 

Tatkal Fee	=	Rs.35,400/-
Transfer Fee	=	Rs.31,068/-
Publication Charges	=	Rs.11,800/-
Sub GPA Fees	=	Rs.1,180/-
Stamp Duty	=	Rs.1,40,858/-
	Total	Rs.2,19,906/-

 

9]       The Opposite Parties also issued a Public Notice in the newspaper on 9.12.2017 regarding transfer of Dwelling Unit in question in favour of the complainant, but surprisingly, the Opposite Parties vide its letter dated 6.2.2018 (Page 46) relying upon Chandigarh Administration’s Circular dated 19.12.2017, has turned down the case of the complainant for transfer of dwelling unit in his name.

 

10]      The Finance Department (Estate Branch), Chandigarh Administration vide Circular No.45/5/22-UTFI(5)-2017/14806, dated 19.12.2017, placed on record by the Opposite Parties as Annexure R-1,  has laid down a detailed process regarding transfer of property by way of GPA/SPA/Will.   The relevant extract of said Circular dated 19.12.2017 (Ann.R-1) reads as under:-

(iii)    The GPA transactions entered on or before 11.10.2011 shall be considered only for regularization of title/ownership in respect of any immovable property by executing deeds of conveyance.  The mutation already entered before 11.10.2011 on the basis of GPA/SPA/WILL shall not be disturbed or unsettled in any way due to issuance of these instructions.”

 

11]      After careful consideration of Circular dated 19.12.2017, relied upon by the OPs vide which the transfer case of the complainant was turned down, it has been noticed that the Chandigarh Administration has chosen to deny transfer of property on the basis of GPA/SPA/Will executed on or before 12.10.2011.  The GPA/SPA/ WILL transaction entered into on or before 11.10.2011 has been decided to be considered for regularization of title, ownership in respect of immovable property by execution of deed of conveyance.

 

12]      In the present case, the GPA as well as Agreement to Sell has been executed in favour of the complainant on 22.11.2007 i.e. much prior to the cut of date of 11.10.2011.  The Chandigarh Housing Board has erred in not considering the case of the complainant regarding transfer of his title/ownership for Dwelling Unit No.3240, Sector 40-D, Chandigarh.  The Chandigarh Housing Board has not adhered to the instruction issued by Finance Department (Estate Branch) Chandigarh Administration, dated 19.12.2017, which amounts to deficiency in service on their part. 

 

13]      The plea of the OPs that in the General Power of Attorney dated 16.7.2003 given by original allottee Sh.Telu Singh in favour of Sh.Kulbir Singh, as well as in Special General Power of Attorney dated 22.11.2007 given by Kulbir Kaur in favour of Rakesh Kumar, no power of sale has been given and only management attorney has been given, is not tenable.  A bare perusal of GPA dated 16.11.2003 shows that at Para No.6, it has specially been mentioned as “to do all other acts, deed and things for the proper management, construction and disposal/transfer of my said house under her own signatures.”  Further, in Sub General Power of Attorney dated 22.11.2017 at Para No.6, the complainant has been authorised “to do all other acts, deeds and things for the proper management, construction and disposal/transfer of my said house under his own signatures.”

 

14]      Keeping into consideration the facts & circumstance of the case, as discussed in preceding paragraphs, as well as in the interest of justice, the complaint is allowed with direction to the Opposite Parties to transfer the ownership/title of Dwelling Unit NO.3240, Sector 40-D, Chandigarh in favour of the complainant Rakesh Kumar, within 30 days from the date of receipt of certified copy of this order.  The complainant shall, however, complete the procedural formalities, including payments, if any, of the Opposite Parties to facilitate the transfer of dwelling unit in question in his name. 

         Certified copy of this order be sent to the parties, free of cost, as per rules. File be consigned to record room.

Announced

22^nd January, 2019                                                        Sd/-

 (RAJAN DEWAN)

PRESIDENT

                                                                                               

Sd/-

                                                                    (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER