Chandigarh

StateCommission

A/103/2023

ASHOK BEMBEY - Complainant(s)

Versus

THE CHAIRMAN, CHANDIGARH HOUSING BOARD AND ANOTHER - Opp.Party(s)

KARAN DEV SHARMA

30 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	103 of 2023
Date of Institution	:	25.04.2023
Date of Decision	:	30.01.2024

Ashok Bembey S/o Late Sh. Chaman Lal Bembey Resident of 6024, MHC Manimajra, U.T. Chandigarh.

 ……Appellant/Complainant

V e r s u s

1. The Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector 9-D, Chandigarh-160009.
2. The Municipal Commissioner, Municipal Corporation Chandigarh, New Deluxe Building, Sector 17, Chandigarh.

…..Respondents/opposite parties

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER

                            

Present:-    Sh.Karan Dev Sharma, Advocate for the appellant.

Sh.Abhaysher Singh, Advocate for respondent no.1.

Sh.Rajwinder Singh Rajput, Advocate for respondent no.2.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainant/appellant, who is a senior citizen, by way of filing this appeal has assailed the order dated 20.03.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), in consumer complaint bearing no.328 of 2020, which was dismissed by it by holding that since the present case pertains to conversion/transfer of title of leasehold site/plot (immovable property) into freehold basis by the opposite parties, as such, the complainant did not fall within the purview of consumer in view of ratio of law laid down by the  Supreme Court of India in Estate Officer vs Charanjit Kaur, Civil Appeal No. 4964 of 2021 (Arising out of SLP (Civil) No. 5051 of 2018) decided on 07.09.2021. Relevant part of the said order impugned is reproduced hereunder:-

 “……..In view of principle of law laid down by the Hon’ble Supreme Court of India in Estate Officer vs Charanjit Kaur case (supra), wherein, in para no.24 it has been specifically held that the Consumer Fora under the Act would not have jurisdiction to entertain the consumer complaints on the ground of deficiency in service related to transfer of title of the immovable property, resultantly, we are of the considered view that the District Commission lacks jurisdiction to give any directions to the opposite parties in matters relating to conversion of the plot of the complainant from leasehold to free hold site.  

In view of the aforesaid discussion and the reasons recorded hereinbefore, we do not find any deficiency in service or unfair trade practice on the part of the Opposite Parties. Accordingly, the consumer complaint, being meritless, is hereby dismissed, leaving the parties to bear their own costs. However, the complainant shall be at liberty to agitate the issue mentioned above before a Court of competent jurisdiction/ appropriate Forum….”

Factual scenario:-

2.           Before the District Commission, it was the case of the complainant-Sh.Ashok Bembey that he had purchased the residential unit bearing House No.6024, MHC, Manimajra, Chandigarh, from Mrs.Ranjit Kaur (original allottee) in the year 2002. Mrs. Ranjit Kaur had purchased the said unit under the quota for persons of Indian origin residing/settled abroad exclusively and sold under lease-hold basis and had already paid the entire sale consideration to opposite party no.1. Even the requisite fee required to be  paid for transfer of the unit in question and other charges also stood paid by  the original allottee to opposite party no.1 for  smooth process of transfer of the said unit in favour of the complainant and also for its conversion from lease hold to free hold basis. Requisite No Due Certificate and also No Objection Certificate also stood obtained by the original allottee so that the unit in question could be converted from lease hold to free hold basis.  Power of attorney was also given by her in favour of the complainant, as she had to leave abroad. Thereafter, the complainant applied for the transfer of the said unit with the opposite parties on 02.06.2008 and paid the transfer fees amounting to Rs.1,97,740/- in cash to opposite party no.1 on 13.02.2015. The unit in question was ultimately transferred vide letter dated 30.06.2015, Annexure C-17 i.e. after delay of about 7 years. Thereafter, instead of getting the conveyance deed executed in favour of the complainant, as the original allottee had already completed all the formalities for conversion of the unit from lease hold to free hold basis, opposite party no.1 vide letter dated 15.06.2020, Annexure C-24 raised demand of  Ground Rent under lease hold basis alongwith GST @18% i.e. Rs.69720/- plus Rs.12549/- as GST totaling to Rs.82,269/- and that too, when admittedly they were already having an excess amount in the account of property in question. The opposite parties as per their own ‘Citizen’s Charter’ (Annexure C-2) did not abide by any of their duties/responsibilities as enshrined therein and also did not follow the procedure as laid down in it. Conversion of the unit in question from lease-hold to free-hold could not be done only due to the fault as committed by the office of opposite party no.1 as it did not follow the correct procedure as laid down in the Citizen’s Charter and kept on sending letters to the wrong quarters. Hence, consumer complaint was filed before the District Commission seeking following relief:-

1. “………Pass an interim order staying the demand of alleged ground rent to the tune of Rs.82,269/- till the finalization/redressal of the present complaint.
2. Convert the residential premises House number 6024, MHC, Manimajra, Chandigarh from lease-hold to free-hold with effect from August 2003, when all the formalities with regard to conversion had been completed by the complainant as per the procedure laid down in the Citizen's Charter of Opposite Party number 1.
3. Compensation to the tune of Rupees Rs. 5,00,000/- for mental harassment and inducing mental stress by sending a false demand notice for deposition of ground rent of Rs.82,269/-, whereas the Chandigarh Housing Board already has a surplus sum of money already deposited by the complainant which after deductions is pending as Rs.28,642/-.
4. Compensation to the tune of Rs.10,00,000/- for not informing timely/keeping in loop of information in the year 2009/2011 as well as for malafidely withholding a surplus amount as ground rent from complainant and not informing him about the same. Also, they be directed to refund the excess amount withheld alongwith interest @24% from the date of accrual of such surplus amount.
5. Litigation expenses of Rs.55,000/-.

Any other order or direction in the favour of the complainant and against the Opposite Parties which this Court deems fit and proper in the present circumstances of the case in the interest of justice.……….”

 

Written reply filed by opposite party no.1:-

3.           Opposite party no.1/Chandigarh Housing Board contested the consumer complaint and filed its written statement wherein it was stated that the dwelling unit in question was initially allotted to Smt.Ranjit Kaur w/o Sh.Karmajit Singh vide allotment letter No.3573 dated 27.07.1995. No Dues Certificate was issued in favour of Smt.Ranjit Kaur vide letter No.8781 dated 08.07.2003. Smt. Ranjit Kaur had applied for issuance of NOC for conversion of the lease hold land into free hold of the said Dwelling Unit vide letter dated 15.07.2003 and the same was issued vide office letter No.9719-20 dated 31.07.2003. The original allottee Smt. Ranjit Kaur after obtaining the NOC for conversion of the lease hold land of the dwelling unit into free hold did not act further according to procedure and never applied before the Municipal Corporation, Chandigarh for conversion of the same. As such, for the lapse of the original allottee or the complainant, opposite party no.1 cannot be held responsible. 

 

Written reply filed by opposite party no.2:-

4.           Opposite party  no.2/Municipal  Commissioner, MC, Chandigarh also contested the consumer complaint and filed his written version wherein it has been stated that as per record of opposite party no.2, the Chandigarh Housing Board vide dated 31.07.2003 has given NOC to the original allottee for conversion of the unit from lease hold to free hold. After duly receipt of the application form complete in all respect and deposit of conversion fee, the site was to be converted into freehold basis from lease basis and only thereafter, the conveyance deed could be executed. However, in the present case, the lessee had never applied/requested the office of opposite party no.2  for conversion of unit in question from leasehold to free hold. The complainant approached this office on 06.08.2015 to execute the conveyance deed which was not possible, as the unit in question was still showing to be lease hold and not free hold, which fact was conveyed to the complainant vide letter dated 31.08.2015. All other allegations made in the complaint were  denied being wrong.

 

Rejoinder:-

5.           In the rejoinder filed, the complainant reiterated all the averments contained in his complaint and controverted those of opposite parties.

 

Evidence filed by the parties

6.           The contesting parties led evidence by way of affidavits and numerous documents before the District Commission.

 

Decision of the District Commission:-

7.           The District Commission after hearing the contesting parties and on going through the material available on record, dismissed the consumer complaint, in the manner stated above.
8.           Hence this appeal has been filed by the appellant/complainant.
9.           Record of the District Commission has been requisitioned.
10.           We have heard the contesting parties and have scanned the entire record of this case, including written arguments filed by the parties concerned.

Submissions of contesting parties:-

11.           During arguments, counsel for the appellant/complainant vehemently contended that the District Commission fell into a grave error in dismissing the consumer complaint by relying upon Estate Officer vs Charanjit Kaur case (supra) and holding that it has no jurisdiction to decide the dispute qua deficiency in service relating to transfer of title of the immovable property or conversion of the unit in question from leasehold to free hold site.  
12.           On the other hand, counsel for respondents/opposite parties submitted that the order passed by the District Commission being based on the correct appreciation of facts and law on the point needs to upheld.

Observations and findings of this Commission:-

13.           Perusal of record reveals that in the first instance, the unit in question stood allotted in favour of one Ranjit Kaur wife of Sh.Karanjit Singh by opposite party no.1. It is also an admitted fact that the unit in question stood sold by Smt.Ranjit Kaur  to the complainant vide agreement to sell dated 09.07.2003, Annexure C-1 colly.  It is also coming out from the record that the original allottee had already paid the entire sale consideration to opposite party no.1 and infact had paid an excess amount of Rs.48,802/- which is still retained with opposite party no.1, yet, there is nothing on record that either the unit in question stood converted form lease hold to free hold or conveyance deed has been executed.
14.           Under above circumstances, when we put a specific question to counsel for the opposite parties no.1 and 2, as to why, conversion of the unit in question from lease hold to free hold  and also conveyance deed has still not been done, they tried to evade their liability by blaming each other. Counsel for opposite party no.1 stated that it was for opposite party no.2 to  do so, whereas, on the other hand, counsel for opposite party no.2 stated that it was only opposite party no.1 to covert the lease hold the land under neath the unit to free hold basis and only thereafter conveyance deed could have been executed by opposite party no.2 in respect of the unit in question.

                   As such, now the moot question which falls for consideration is, as to who was responsible for getting the conversion of the unit in question from lease hold to free hold. It may be stated here that we have gone through the Citizens’ Charter, Annexure C-2 (placed on record of paper book of the District Commission) and under the heading “..PROCEDURE WITH REGARD TO CONVERSION OF CHB DWELLING UNITS FROM LEASE HOLD TENURE TO FREE HOLD LAND TENURE,..” it has been provided as under:-

 

“……….PROCEDURE WITH REGARD TO CONVERSION OF C.H.B. DWELLING UNITS FROM LEASE HOLD TENURE TO FREE HOLD LAND TENURE

 

Conversion of Lease-hold land tenure to free-hold land tenure is optional under the rules titled "The Chandigarh Conversion of Residential Lease-hold Land Tenure into Free-Hold Land Tenure Rules, 1976." After obtaining No Due Certificate from the Chandigarh Housing Board (Recovery Branch), the allottee who is interested to get the land under the dwelling unit allotted to him/her converted from Lease-hold to Free-hold may apply to the Chief Accounts Officer, Chandigarh Housing Board for clearance/No Objection Certificate for conversion on the prescribed forms available at Reception Counter of Chandigarh Housing Board

 

On receipt of clearance/NOC from CHB, the allottee shall apply for conversion on the prescribed application form (available al Reception Counter of CHB on payment of Rs. 25/-) to the Secretary, Chandigarh Housing Board exercising the powers of the Estate Officer, UT, Chandigarh as per procedure/guidelines detailed in the Brochure

On scrutiny of the application form and other related supporting documents alongwith prescribed requisite conversion charges/fee to his satisfaction, the Secretary, Chandigarh Housing Board exercising the powers of Estate Officer, UT, Chandigarh will allow conversion.

 

Thereafter the allottee will be required to execute the Conveyance Deed amongst 'Transfree (allottee), CHB and EO, UT, Chandigarh after depositing requisite amount of stamp duly through Treasury Challan available in the Central Treasury, U.T., Chandigarh. Besides, following processing fee is also to be paid to the CHB :-

 

1. HIG Category Rs.500.00

2. MIG Category Rs.300.00

3. LIG Category Rs.200.00

4 EWS/ Site  Rs.100.00

 

NOTE: In case of any doubt, the allottee/applicant can contact the Branch Incharge in Room No. 24….”

 

A bare perusal of the afore-extracted contents of citizen’s charter clearly goes to show that it was informed to the general public/allottees that on receipt of clearance/NOC from CHB, the allottee who are interested for conversion of unit from  lease hold to free hold shall apply for conversion on the prescribed application form (available al Reception Counter of CHB on payment of Rs. 25/-) to the Secretary, Chandigarh Housing Board exercising the powers of the Estate Officer, UT, Chandigarh as per procedure/guidelines detailed in the Brochure. On scrutiny of the application form and other related supporting documents alongwith prescribed requisite conversion charges/fee to his satisfaction, the Secretary, Chandigarh Housing Board exercising the powers of Estate Officer, UT, Chandigarh will allow conversion.

                   Furthermore, perusal of contents of document, Annexure C-38 i.e. the noting of opposite party no.1 reveals that it has been clearly  mentioned that the original allottee-Smt.Ranjit Kaur has applied for issuance of clearance certificate for conversion of unit from lease hold to free hold and approval was sought to forward the case of the applicant to the Secretary, Chandigarh Housing Board, exercising the powers of Estate Officer  for conversion of unit from lease hold to free hold. Thus, from the contents of document, Annexure C-38 it can easily be presumed that the application of original allottee-Smt.Ranjit Kaur had been scrutinized for sending the same to the Secretary, Chandigarh Housing Board exercising the powers of Estate Officer, UT, Chandigarh for allowing conversion from lease hold to free hold, as per the procedure adopted under Citizens’ Charter, Annexure C-2.

15.           It is further coming out from the record that thereafter, a letter dated 18.07.2003, Annexure C-32 was sent by the Accounts Officer of opposite party no.1 to SDE (Enforcement), Chandigarh Housing Board, Chandigarh, stating therein that the allottee/original owner of the unit in question has applied for conversion of land under the said dwelling unit from lease hold to free hold. In this letter, it has been further requested to SDE (Enforcement), Chandigarh Housing Board, Chandigarh to submit report regarding illegal construction, if any, within 7 days, so that the request for conversion from lease hold to free hold could be considered. This fact is further fortified from the document-Annexure C-31 i.e. the interse departmental communication/noting. Relevant part of the letter  dated 18.07.2003, Annexure C-32   is reproduced hereunder:-

 

“………No.HB-AO-2003 9274-75                    dated/18/7/03 To   The S. D. E. (Enforcement) Chandigarh Housing Board, Chandigarh.   Subject:- Inspection of Building before permission to convert  from lease hold to free     The allottee of dwelling unit No.6024 Cat. HIG, Sector PH-III has applied for conversion of land under dwelling unit from lease hold to free hold. You are accordingly requested to inspect the dwelling unit and to submit your report regarding illegal construction, if any, within 7 days from the date of issuance of this letter to enable this office to consider the request of the allottee for conversion of his dwelling unit from lease hold to free hold.   Accounts Officer Chandigarh Housing Board..”

 

16.           However, thereafter, instead of taking action by the Secretary, Chandigarh Housing Board exercising the powers of Estate Officer, UT, Chandigarh for allowing conversion of the unit in question from lease hold to free hold, as per the procedure adopted under Citizens’ Charter, Annexure C-2, it is coming out from the record that opposite party no.1 wrote one letter dated 31.07.2003, Annexure C-20 to the Additional Commissioner, Municipal Corporation, Chandigarh with the subject “Conversion of lease hold land under dwelling unit into free hold” stating therein that the original allottee-Smt.Ranjit Kaur intends to get converted the lease hold land under free hold and that the allottee has paid all dues towards installments, ground rent, interest, penalty etc. and no arrears are outstanding and that opposite party no.1 has no objection if the lease hold property in question is converted into free hold after completing requisite formalities.  
17.           During pendency of this appeal, when  we asked opposite party no.1 as to why, no steps were taken by the Secretary, Chandigarh Housing Board exercising the powers of Estate Officer, UT, Chandigarh for allowing conversion of the unit from lease hold to free hold, after adopting the procedure under Citizens’ Charter, Annexure C-2, he sought permission to place on record some documents, to prove that it was the duty of opposite party no.2 to do so. As such, both the parties were directed to furnish necessary documents qua conversion of unit from lease hold to free hold. 

                   Therefore, during pendency of this appeal, counsel for opposite party no.1 placed on record copy of Memo No. NAC-93/4206 dated 09.12.1993, Annexure A-1/1 issued by the Administrator, Notified Area Committee, Manimajra (U.T. Chandigarh) to opposite party no.1 perusal whereof reveal that a chunk of 32 Acres of land in Pocket No. 4 & 5 was allotted to opposite party no.1, by the Notified Area Committee and it has been categorically stated in this letter that the land was allotted on lease hold basis for 99 years. It has also been categorically stated in the above-mentioned letter that in the event of conversion of Lease Hold unit into Free Hold Basis, the conversion charges shall have to be deposited with the NAC, Manimajra. It has further been mentioned in the above mentioned letter that the land shall continue to belong to the Notified Area Committee until the entire consideration money alongwith interest and any other amount due to the committee on account of sale of such land is paid.

                   At the same time, opposite party no.1 has placed on record another memo.No.4847 dated 02.09.2004, Annexure A-1/2, with the subject:- Conversion of Dwelling Unit from lease hold into free hold in respect of land allotted to Municipal Corporation” having been written by opposite party no.2 to opposite party no.1. In this letter, it has been clearly informed  by opposite party no.2 to opposite party no.1 that the erstwhile Notified Area Committee was merged with Municipal Corporation and that the Additional CMC has been exercising the power of Estate Officer for conversion of residential property from lease hold to free hold in respect of land allotted by the erstwhile NAC now Municipal Corporation. The procedure for conversion of the unit from lease hold to free hold basis was also mentioned in the said letter i.e. obtaining of No Dues Certificate and No Objection Certificate from opposite party no.1; filling of application form on payment of Rs.50/-; prescribed affidavit; conversion fee, photograph of allottee; attested copy of allotment letter, possession letter etc. Thus, from the documents referred to above, it clearly reveals that from the year 2004, it was opposite party no.2 which was legally bound to get the conversion of the unit in question from lease hold to free hold, after receiving requisite  documents referred to above.

                   However, as stated above, after receiving application for conversion of unit in question from lease hold to free hold, opposite party no.1 wrote letter dated  18.07.2003, Annexure C-32 to SDE (Enforcement), Chandigarh Housing Board, Chandigarh, to submit report regarding illegal construction, if any, within 7 days, so that the request for conversion from lease hold to free hold could be considered and thereafter, letter dated 31.07.2003, Annexure C-20 was sent to the Additional Commissioner, Municipal Corporation, Chandigarh with the subject “Conversion of lease hold land under dwelling unit into free hold” by opposite party no.1 saying therein that it has no objection if the lease hold property in question is converted into free hold after completing requisite formalities. Yet, as stated above, what to speak of conversion of the unit from lease hold to free hold, opposite party no.1 took about 7 years for transferring the unit in question from original allottee to the name of the complainant and it was ultimately transferred vide letter dated 30.06.2015, Annexure C-17.

18.           It is further coming out from the record that after transfer of the unit in question, when the complainant vide letter dated 29.07.2015, Annexure C-18 approached opposite party no.2 for  execution of conveyance deed  and conversion of unit from lease hold to free hold alongwith necessary documents, the same was turned down by opposite party no.2 vide letter dated   14.08.2015, Annexure C-19 on the ground that since the site stands with the Chandigarh Housing Board, Chandigarh on lease hold basis, as such, he is directed to approach opposite  party no.1 for  execution of lease deed. Thereafter, instead of taking any action in the matter qua execution of conveyance deed and conversion of unit from lease hold to free hold, opposite  party no.1 vide letter dated 15.06.2020, Annexure C-24 raised demand of  Ground Rent under lease hold basis alongwith GST @18% i.e. Rs.69720/- plus Rs.12549/- as GST totaling to Rs.82,269/- and that too, when admittedly they have already received an excess amount of Rs.48,802/- as is evident from the contents of Allotment Letter  dated 27.07.1995, Annexure C-26. 
19.           From the sequence of events narrated above it is clearly coming out that it was on account of ambiguity between opposite parties no.1 and 2 that in the first instance, opposite party no.1 relied upon Citizens’ Charter, Annexure C-2  and forwarded the case  for conversion of unit from lease hold to free hold to the Secretary, Chandigarh Housing Board exercising the powers of Estate Officer, UT, Chandigarh for allowing conversion for conversion from lease hold to free hold. However, in between the case for conversion was sent to opposite party no.2, in view of Memo No. NAC-93/4206 dated 09.12.1993, Annexure A-1/1 issued by the Administrator, Notified Area Committee, Manimajra, U.T. Chandigarh and memo.No.4847 dated 02.09.2004, Annexure A-1/2, referred to above but still no action was taken by the opposite parties in the matter.
20.           Perusal of the record reveals that starting from 02.06.2008, the complainant requested the opposite parties by way of sending letters till 2015 with a request to transfer the unit in question in his favour and also to covert the said unit from lease hold basis to free hold basis. However, it was for the first time that opposite party no.1 vide letter dated 11.02.2015, Annexure C-15 asked the complainants to deposit transfer fee of Rs.1,97,740/- in CHB current Account No.215794 in Axis Bank, Chandigarh, which stood deposited by the  complainant immediately on 13.02.2015, in cash, vide receipt dated 13.02.2015, Annexure C-8. Thereafter,  opposite party no.1 vide letter dated 30.06.2015, Annexure C-17 ultimately transferred the unit in question in favour of the complainant i.e. after a period of delay of more than 7 years, yet, the unit in question was not converted form lease hold into free hold, despite the fact that  the allottee/original owner of the unit in question has applied for conversion of land under the said dwelling unit from lease hold to free hold, as is evident from letter dated  18.07.2003, Annexure C-32 referred to above and that too when the transfer fees of  Rs.1,97,740/- and also the fees etc. which was required, stood received by opposite party no.1.

                   However, salt was added to the miseries of the complainant because when he applied to opposite party no.2 for conveyance deed in respect of the unit in question vide letter dated 29.07.2015, Annexure C-18 alongwith necessary documents, it was rejected by opposite party no.2 vide letter dated 14.08.2015, Annexure C-19 on the ground that the unit in question still stands as lease hold property in the name of opposite party no.1. In this manner, for the fault and ambiguity between the opposite parties, the  complainant has been made scapegoat and his genuine request of conversion of unit from lease hold to free hold and also execution of conveyance deed was not acceded to, which is being lingered on since 1995, which has definitely caused him lot of mental agony, humiliation and harassment. Thus, from the documents referred to above, it can easily be established that the original allottee of whom the complainants stepped in the shoes, has already applied with the opposite parties and no dues, penalty etc. was pending against the applicant. Under above circumstances, the plea taken by the opposite parties to the effect that  neither the complainant nor the original allottee have ever applied for conversion of the unit in question from lease hold to free hold basis is falsified from their own document, Annexure C-32. In this manner, the complainant has been left in lurch and has been running from pillar to post to get his unit converted from lease hold to free hold basis for the last so many years. One can well imagine the plight of the complainant in this situation.. The aforesaid act and conduct of the opposite parties amounts to deficiency in rendering service, negligence and adoption of unfair trade practice. The complainant is thus entitled to get converted the unit in question to free hold from lease hold basis and also execution of conveyance deed. The act and conduct of the opposite parties has also definitely sapped all the energy, attention, and mental tranquilly of the complainant. Fighting a court battle is both time-consuming and exhausting, which might have taken mental toll on the complainant, for which they are liable to compensate him, suitably.

21.           The next question that falls for consideration is, as to whether the complainant is liable to make any payment towards conversion fees, over and above the transfer fee to the tune of transfer fee of Rs.1,97,740/- which stood deposited by him on 13.02.2015, vide receipt, Annexure C-8. It may be stated here that it  has been fairly admitted by opposite party no.1 and also evident from allotment letter dated 27.07.1995 that an amount of Rs.48,802/- had been received by it in excess, which has still not been refunded. Counsel for the complainant has vehemently contended that this amount has been retained by opposite party no.1 against the application/processing fee and the conversion fee i.e. for conversion of the unit in question from lease hold to free hold. On the other hand, opposite party no.1 has failed to rebut this contention by placing on record any contrary evidence.

                   It is evident from memo. No.4847 dated 02.09.2004, Annexure A-1/2 issued by The Additional Commissioner, Municipal Corporation, Chandigarh to the Secretary, Chandigarh Housing Board/opposite party no.1 that the conversion fee of the dwelling unit in the year 2004 was Rs.16,583/- per unit over and above payment of application fee to the tune of Rs.50/-.  However, since opposite party no.1 had already retained the amount of Rs.48,802/-  in the manner stated above, as such, it is directed to transfer the amount of conversion fee prevailing at the relevant time i.e. Rs.16,583/-  and also Rs.50/- as application fee to opposite party no.2 so that it can initiate the process of conversion of unit from lease hold to free hold and also the conveyance deed can also be executed in favour of the complainant.  At the same time, the complainant is held entitled to get remaining amount of Rs.32,169/-  from opposite party no.1 with interest, which will be awarded in later part of this order. However, it is also made clear that in case during the period intervening, if the responsibility of getting the said conversion has been  shifted between any of the opposite parties through any notification etc., the same will not be put as hurdle and in those circumstances, the opposite parties shall jointly and severally carry out the said process, without putting any burden upon the complainant. 

22.           Now coming to the objection taken by counsel for the opposite parties to the effect that since the Hon’ble Supreme Court in Estate Officer Versus Charanjit Kaur case (supra) has held that the Consumer Fora has no jurisdiction to entertain and decide consumer complaint on ground of deficiency in service related to transfer of title of immovable property and conversion of residential site from leasehold to freehold, which has also rightly been observed by the District Commission in the order impugned, as such, the consumer complaint of the complainant was rightly dismissed by the District Commission.  It is significant to mention here that we have all the respect to the ratio of law laid down by the Hon’ble Supreme Court in  Estate Officer Versus Charanjit Kaur case (supra), yet, we are of the considered view that the facts of the present case being clearly distinguishable to that of the facts of Estate Officer Versus Charanjit Kaur case (supra) are not applicable to the present case, as discussed hereinafter.
23.           Firstly, in para no.17 of Estate Officer Versus Charanjit Kaur case (supra), it has been observed by the Hon’ble Supreme Court that the Chandigarh Housing Board is not charging any fee or charges for transfer of the plot or conversion of lease hold property into free hold property except conversion charges in accordance with the 1996 Rules, which is a part of sale consideration and not for any kind of service. 

                   Whereas, in the present case, it is proved on record that the complainant had paid an amount of transfer fee of Rs.1,97,740/- in CHB current Account No.215794 in Axis Bank, Chandigarh, on 13.02.2015, in cash, vide receipt dated 13.02.2015, Annexure C-8, over and above the amount of Rs.50/- as application fee for conversion of the unit in question from lease hold to free hold. As per Citizen’s Charter, Annexure C-2, it is evident from that the Chandigarh Housing Board/opposite party no.1 is charging application fee (at page 84), processing fee etc. for transfer of dwelling unit in the name of GPA/Sub GPA and also application fee to the tune of Rs.25/- (at page 89) for conversion of the unit from lease hold to free hold, over and above, the amount of conversion fee in accordance with the 1996 Rules.  Thus, since the applicant had paid  sale consideration in the shape of transfer fee and application fee, referred to above, therefore the complainant who  stepped in the shoes of the original applicant/allottee, falls within the definition of consumer, as defined under Section 2 (7) of the Act, which says that "consumer" means any person who  buys any goods for a consideration or  hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised.  

24.           Secondly, in para no.19, it has been  observed by the Hon’ble Supreme Court that the expression “service” under the CP Act includes housing construction and not allotment of a site or a plot and that since no services were promised to be provided by the Chandigarh Housing Board as such it being a statutory body cannot be said to be a service provider.                         Whereas, in the present case, opposite party no.1 vide Citizens’ Charter, Annexure C-2 has committed to provide various services subject to payment of application fees/processing fee and also the time frame within which the said services were to be provided and one out of which was conversion of unit from lease hold to free hold.  It has also been candidly mentioned in the said Citizens’ Charter, that opposite party no.1 promises all resident of Chandigarh to construct well designed, good quality and reasonably priced housing; to float schemes which will address the current requirement of the general public etc. etc. It has also been clearly mentioned in this Citizens’ Charter, Annexure C-2 that this booklet spells out the procedures to be followed for getting various services in the CHB as enumerated from s.no.1 to 4 i.e. conversion from lease hold to free hold etc.  Relevant part of the said Citizens’ Charter, is reproduced hereunder:-

 

“.The Citizens' Charter of the Chandigarh Housing Board is a statement of our guiding principles and objectives. We aim to be a transparent, responsive and public friendly organization.

 

This booklet spells out the procedures to be followed for getting various services in the CHB, and also indicates the time frame within which citizens can expect their work to be done. If any person faces difficulty in the above, he/ she is most welcome to meet the Chairman or the Chief Executive Officer during public hours.

 

The last page of the booklet is for suggestions and complaints, which can be filled up and put into the Suggestions Box at the Reception Counter, or mailed to the Secretary CHB. It is assured that they shall be given due attention.

 

We also welcome any suggestions for improving this booklet and making it more useful.

 

G. K. Marwah, IAS

Chairman

Chandigarh Housing Board

 

 

The Chandigarh Housing Board promises all residents of Chandigarh :

1. To construct well designed, good quality and reasonably priced housing.

2. To float schemes which address the current requirements of the general public.

 

3. To establish convenient and transparent procedures for allotment, possession, payments and transfer of properties.

4. To uphold building bye laws for the safety and comfort of all residents of CHB dwelling units.

5. To ensure prompt and courteous redressal of grievances…”

 

In the present case, the complainant is seeking the services of the opposite parties for  conversion of the unit in question from free from lease hold to free hold basis on making payment of application fee i.e. consideration amount and also huge consideration of transfer fee, as referred to above, to opposite party no.1.  Under these circumstances, even if the opposite parties are statutory bodies, but once they have promised to provide services and provide residential houses, after constructing the same alongwith allied schemes, on receipt of application fee, processing fee etc. as such, any deficiency in service or negligence on their part in that regard, will come under the purview of  “service provider” under CPA 2019. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in Lucknow Development Authority vs M.K. Gupta, 1994 AIR 787, 1994 SCC (1) 243, wherein it was held that if a person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor, is a potential user and nature of transaction is covered in the expression 'service of any description'. Relevant part of the said order is reproduced hereunder:-

“………6. What remains to be examined is if housing construction or building activity carried on by a private or statutory body was service within the meaning of clause (o) of Section 2 of the Act as it stood prior to inclusion of the expression 'housing construction' in the definition of "service" by Ordinance No. 24 of 1993. As pointed out earlier the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of Section 2 as unfair trade practice. If a builder of a house uses substandard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land and frame housing scheme, it, while performing statutory duty renders service to the society in general and individual in particular. The entire approach of the learned counsel for the development authority in emphasising that power exercised under a statute could not be stretched to mean service proceeded on misconception. It is incorrect understanding of the statutory functions under a social legislation. A development authority while developing the land or framing a scheme for housing discharges statutory duty the purpose and objective of which is service to the citizens. As pointed out earlier the entire purpose of widening the definitions is to include in it not only day to day buying of goods by a common man but even such activities which are otherwise not commercial but professional or service-oriented in nature. The provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore Development Act clearly provide for preparing plan, development of land, and framing of scheme etc. Therefore if such authority undertakes to construct building or allot houses or building sites to citizens of the State either as amenity or as benefit then it amounts to rendering of service and will be covered in the expression 'service made available to potential users'. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression 'service of any description'. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993. ……”

 

25.           In view of peculiar facts and circumstances of this case, it is therefore held that since in the present case, it has been established that the opposite parties have received consideration from the complainant qua transfer fee and also processing/application free for transfer of the unit and also for  its conversion from lease hold to free hold and also at the same time, vide Citizens’ Charter, Annexure C-2, opposite party no.1  promised the allottees to provide certain services referred therein, as such, the District Commission  fell into an error in dismissing the consumer complaint, by applying ratio of law laid in Estate Officer Versus Charanjit Kaur case (supra), the facts whereof were completely distinguishable to that of the facts of the present case.
26.           For the reasons recorded above, this appeal stands partly allowed. The order of the District Commission dismissing the consumer complaint is set aside. The respondents/opposite parties are directed as under:-
    1. The respondents/opposite parties shall take up the case of the appellant/complainant qua conversion of his unit in question from lease hold to free hold and also execution of conveyance deed, after completing due formalities and get the same done within a period of 3 months (Three months) from the date of receipt of a certified copy of this order, without charging anything from the appellant/complainant, failing which they shall be liable to pay penalty @Rs.500/- per day to the appellant/complainant till realization.  
    2. Respondent no.1/Opposite party no.1 shall refund to the appellant/complainant the amount of Rs.32,169/- (Rs.48,802/- minus Rs.16,583/- as conversion fee and application fee of Rs.50/-) alongwith interest @9% p.a. from the date of its receipt onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which it shall refund the same alongwith penal interest @12% p.a. instead of 9% p.a. till realization.  
    3. Respondent no.1/Opposite party no.1 shall refund the ground rent, if any, received from the appellant/complainant, starting from the date of purchase of the said unit by him, in resale, till date, alongwith interest @9% p.a. from the respective date(s) of its receipt onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which it shall refund the same alongwith penal interest @12% p.a. instead of 9% p.a. till realization.  
    4. Respondents/Opposite  Parties, jointly and severally, to pay Rs.5 lacs  (Five Lacs) as  compensation to the appellant/complainant for causing him mental agony, humiliation and harassment as also for deficiency in rendering service and negligence and also Rs.50,000/- as cost of litigation, within a period of 30 days from the date of receipt of a certified copy of this order, failing which these amounts of compensation and litigation shall entail interest @9% p.a. from the date of default till realization 
27.           Certified copies of this order be sent to the parties, free of charge, forthwith.
28.           The concerned file be consigned to Record Room, after completion and record of the District Commission be sent back immediately.

Pronounced

30.01.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg