This is an appeal filed by the appellant/OP No.1 against the order, dated 19.7.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 1440 of 2009 vide which the OPs were directed to transfer the dwelling unit No.5624, Category Independent, Modern Housing Complex, Phase III, Manimajra, UT, Chandigarh in favour of the complainant within 30 days from the date of receipt of a copy of the order and pay to the complainant interest @ 17% per annum on the amount of Rs.1,56,551/- since 17.3.2004 to 2.7.2009. The OPs were also directed to pay Rs.50,000/- to the complainant as compensation. The entire amount was directed to be paid within thirty days from the date of a receipt of copy of the order and the dwelling unit was directed to be transferred, in her favour, within the aforesaid period. It was further directed that in case of non-compliance of any part of the order during the aforesaid period, OP-1 was to pay interest thereon @ 17% per annum w.e.f date of decision till the order was complied with in full.  The OPs were also directed to pay Rs.5,500/- as costs of the litigation to the complainant.  It was further directed that OP No.1 would be entitled to recover the amount of interest, costs and compensation from the defaulting official(s) after allotting him/her/them an opportunity of being heard. Complaint qua OPs No. 2 & 3, was dismissed.

2.                     Briefly stated, the facts of the case, are that the complainant entered into an agreement to sell (purchase) from Mrs. Raksha Devi - OP No.3 on 26.2.2004, in respect of the Dwelling Unit No.5624, Modern Housing Complex, Phase-III, Manimajra, U.T., Chandigarh vide Annnexure.C-1. It was stated that OP No.3-Raksha Devi was allottee of the said dwelling unit by OP No.1 on leasehold basis vide Annnexure.C-2.  OP No.3 sought conversion of the said dwelling unit from leasehold to freehold vide application dated 2.7.1999 in response to which OP No.2, accorded necessary sanction, for the said conversion, subject to fulfillment of the conditions, mentioned in
Annnexure.C-3.  It was further stated that subsequently, OP No.3, requested OP No.1 for issuance of No Objection Certificate, which was to be supplied to OP No.2, within the stipulated period of 6 months, from the date of issuance of letter dated 24.11.99, so that further steps including the execution of conveyance deed could be accomplished, during the said time period.  Mrs. Raksha Devi - OP No.3, being owner of the said property applied for the transfer of allotment,  in the name of the complainant, upon which, OP No.1, directed her to deposit Transfer Fee of Rs.1,56,551/- and asked for a formal interview on 22.3.2007 vide Ann.C-7.  The complainant deposited the said Transfer Fee of Rs.1,56,551/- vide Ann.C-8.  It was further stated that the formal interview was also attended by the complainant and OP No.3, as directed by OP No.1.   Subsequently, the complainant requested OP No.1 many times to inform her about the status of the transfer of the dwelling unit in her name, but to no effect.  It was further stated that, in the end, an application was moved before Permanent Lok Adalat, U.T., Chandigarh on 27.5.2009 wherein OP No.1 was to appear on 10.6.2009, but in the meanwhile OP No.1 vide its letter dated 2.6.2009 (Ann.C-15) i.e. after lapse of 5 years and 2 months informed the complainant  that since the dwelling unit allotted to OP No.3 stood converted from its earlier status of leasehold to free hold on 24.11.99, hence the request for Transfer of Allotment in the name of complainant on mutual consent basis was rejected.  It was stated that the aforesaid acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.                     Reply was filed by OP-1, wherein, it was stated that the complaint was not maintainable as the complainant was not a consumer qua OP No.1. It was stated that the complainant had no locus standi to file the complaint.  It was further stated that vide Ann.C-15, dated 2.6.2009 the complainant was informed the reason for rejection of request for transfer/allotment on mutual consent basis.  It was further stated that once the conversion was effected by the Additional Commissioner-cum-Estate Officer of Municipal Corpn, in favour of the original allottee, the Chandigarh Housing Board was not competent to allow the transfer of the rights/title/interest, in the land, as well as the dwelling unit and hence the deposit of transfer fee, or the grant of approval by the CEO, was inadvertent, and not in accordance with law. It was further stated that such transfer did not vest any legal right in favour of the complainant. The refund of transfer fee of Rs.1,56,551/- to the complainant on 2.7.2009 was admitted.  All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OPs nor they indulged into unfair trade practice.

4                      OP No.2 filed short reply wherein it was stated that the complainant was not a consumer qua it nor she ever availed of its services.  It was further stated that the complainant had got no cause of action qua OP No.2, as she had not submitted any document, in the Municipal Corporation, Chandigarh, nor had applied for NOC or transfer.  It was further stated that OP No.2 had the record of conversion of the said dwelling unit from lease hold to free hold only, in favour of Smt.Raksha Devi-OP No.3, who was the original allottee.  Rest of the allegations of the complaint were denied.

5.                       OP No.3  did not appear despite service, hence she was proceeded against exparte.

6.                     The parties led evidence, in support of their case.

7.                     The learned District Forum, allowed the complaint, in the manner, referred to, in the opening para of this order.  

8.                     Aggrieved by the order, passed by the learned District Forum, the appellant/OP No.1, has filed the instant appeal. 

9.                     We have heard Sh. K.K. Gupta, Advocate, for the appellant, Sh. Neeraj Pal Sharma, Advocate for respondent No.1, and, have perused the record, carefully.

10.                   The learned Counsel for the appellant/OP No.1, has contended that while passing the impugned order, the learned District Forum ignored the fact that the Municipal Corporation in its reply dated 3.7.2005 filed before the Permanent Lok Adalat, admitted in para No.2 that the transfer of ownership was to be effected by the Municipal Corporation, Chandigarh.  It was further contended that  the District Forum had wrongly dismissed the complaint, qua the Municipal Corporation, and issued directions to both the parties i.e. the Chandigarh Housing Board and the Municipal Corporation for effecting the transfer of ownership without identifying, as to which of them was liable to effect the transfer.  It was further contended that the learned District Forum also ignored the letter dated 29.3.2006 produced before it, wherein the Municipal Corporation, Chandigarh, itself had decided and conveyed to the appellant, that since the conversion from lease hold to free hold was carried out by the Municipal Corporation, thus the transfer of ownership was also to be allowed by it.   It was further contended by the Counsel for the appellant, that the transfer fee was got deposited by it inadvertently, due to lack of knowledge about the competency of the authority to effect the transfer, for which the appellant, at the most could have been burdened with reasonable interest on the deposited amount, but the entire blame could not be put upon it.  It was further submitted that the allotment of dwelling unit was made in favour of respondent No.3, and as such, OP No.3 was the consumer and not respondent No.1.

11.                   The learned Counsel for respondent No.1 contended that the complainant entered into an agreement to sell (purchase) with OP No.3 on 26.2.2004 in respect of the dwelling unit No.5624, Modern Housing Complex, Phase-III, Manimajra, U.T., Chandigarh. He further submitted that OP No.3 was allottee of the said dwelling unit on leasehold basis.   It was further contended that, OP No.3 requested OP No.1, for the issuance of ‘No Objection Certificate’, which was to be supplied to OP No.2 within the stipulated period of 6 months.  OP No.3 applied for transfer the allotment,  in her name, upon which, OP No.1 directed her to deposit Transfer Fee of Rs.1,56,551/- and asked for a formal interview on 22.3.2007.  Accordingly she deposited the same.     It was further contended that despite several requests OP No.1 did not inform the status of transfer of allotment. When the case was pending before the Permanent Lok Adalat, U.T., Chandigarh, OP No.1 vide its letter dated 2.6.2009 informed the complainant  that since the dwelling unit allotted to OP No.3, stood converted from its earlier status of leasehold to free hold, hence the request for transfer of allotment in her name, on mutual consent, basis was rejected. 

12.                   In the present case, the abovesaid dwelling unit was allotted to OP No.3 in Manimajra, on lease hold basis, vide letter dated 26.7.1995 (Annexure C-2) and she entered into an agreement to transfer the same, in favour of the complainant/respondent No.1. The complainant requested OP No.1 for the transfer of the same, and her request was accepted vide letter dated 18.3.2004 (Annexure C-7). She was asked to deposit Rs.1,56,551/- as transfer fee. The same was deposited by her on 17.3.2004, vide annexure C-8. Thereafter, the complainant requested OP No.1, so many times, for the transfer of the abovesaid dwelling unit, but nothing was done by OP No.1. Ultimately, on 2.6.2009, OP No.1 informed the complainant, that since the dwelling unit allotted to OP No.3, stood converted from its earlier status of lease hold to freehold on 24.11.1999, the request for transfer of allotment, in the name of the complainant on mutual consent basis stood rejected. It was also clarified that after the conversion from lease hold basis to freehold basis, the request for transfer of allotment, could not be entertained by OP No.1, as the same fell within the purview of OP No.2 (Municipal Corporation). After showing its inability, to transfer  the dwelling unit in her favour, OP No.1 on 2.7.2009 refunded the amount of Rs.1,56,551/- without any interest by withholding the money of the complainant, almost for more than 5 years. Hence there was deficiency, in service, on the part of OP No.1, firstly by wrongly accepting the request made by the complainant, for the transfer of the abovesaid dwelling unit, and secondly by directing the complainant to deposit an amount of Rs.1,56,551/-, and by refunding the same, without any interest on 2.7.2009 i.e. after a lapse of more than five years. As the deficiency in service qua OP No.1 was established, in our view, the District Forum rightly directed OP No.1 to refund the amount of Rs.1,56,551/- , though the interest @17% p.a. granted by the District Forum was on higher side. It is required to be reduced to 12% p.a.

13.                   The compensation of Rs.50,000/- has also been rightly awarded by the District Forum, by keeping in mind, the mental agony and the physical harassment, suffered by the complainant, for a long period of more than five years at the hands of OP No.1.  The compensation so granted, could not be said to be unfair, unreasonable and unjust.  The compensation granted is commensurate with facts of the instant case.  It is fair, just and reasonable.

14.                   The direction for the transfer of dwelling unit, could not be issued to OP No.1 because the power to transfer the abovesaid dwelling unit, is not vested with OP No.1. Since the dwelling unit has already been converted from leasehold into free hold, the power vests in OP No.2,  Municipal Corporation to transfer the same in favour of the complainant. Even we are of the view that the District Forum was, thus, not justified in dismissing the complaint against OP No.2.  Even complaint against OP No.3 was wrongly dismissed as it was a necessary party, without whose consent, the abovesaid dwelling unit could not be transferred, in the name of the complainant. The order of District Forum, dismissing the complaint against OP No.2 & 3, is liable to be set aside.

15.                   We do not find any force in the contention made by the appellant that the complainant is not a consumer, because the complainant agreed to purchase the above said dwelling unit from OP No.3, and she stepped into her shoes.  Thus she is a consumer under  Section 2(1)(d)(i) of the Consumer Protection Act, 1986.

16.                   In view of the above discussion, we partly allow the appeal in the following manner,

            (a)       The order dismissing the complaint against OP Nos.2 &3          (respondent Nos 2 &3) by the District Forum is set aside.

(b)       The interest @12% p.a. instead of 17% p.a. from 17.3.2004 to 2.7.2009, on the amount of Rs.1,56,551, shall be paid by the appellant/OP No.1, to the complainant/respondent.

(c)        The remaining directions, regarding the payment of compensation, costs and penal interest @17% p.a. on account of non-compliance of any part of the order, within the stipulated period, by OP No.1, shall remain intact.

 (d)      OP No.2/respondent No.2 shall transfer the dwelling unit aforesaid in favour of the complainant, within one month, from the date, all the formalities are completed by her (complainant)

(e)       The complainant shall approached OP No.2/respondent No.2 (Competent Authority) within 30 days from the receipt of a copy of the order for transfer of the dewelling unit, aforesaid, in her favour after obtaining consent of OP No.3/respondent No.3

(f)         The direction given by the District Forum, for recovery of the  amount of interest, costs and compensation from the defaulting officer(s)/official(s), after giving him/her/them an opportunity of being heard, by OP No.1, shall also remain unaltered.

17.                   The parties are left to bear their own costs.

18.                   Copies of this order be sent to the parties, free of charge.