State Consumer Disputes Redressal Commission
Chandigarh Administration vs Charanjit Kaur on 16 May, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 331 of 2015 Date of Institution : 04.12.2015 Date of Decision : 16.05.2016 Chandigarh Administration through Finance Secretary, U.T., Chandigarh, Sector 9, Chandigarh. Estate Officer, U.T., Chandigarh. ......Appellants/Opposite Parties V e r s u s Charanjit Kaur wife of Sh. Balwant Singh r/o House No.4059, Sector 46-D, Chandigarh. ....Respondent/Complainant Argued by: Sh.K.K. Gupta, Advocate for the appellants. Sh.Vikas Jain, Advocate for the respondent. =================================================== Appeal No. : 351 of 2015 Date of Institution : 28.12.2015 Date of Decision : 16.05.2016 Finance Secretary, Chandigarh Administration, Chandigarh. Estate Officer, Union Territory, Sector 17, Chandigarh. Both through its Assistant Estate Officer, U.T., Chandigarh. ......Appellants/Opposite Parties V e r s u s D.K. Khanna, House No.719, Sector 43-A, Chandigarh. Smt. Santosh Khanna, wife of Sh.D.K. Khanna, House No.719, Sector 43-A, Chandigarh ....Respondents/Complainants Argued by: Sh.K.K. Gupta, Advocate for the appellants. Sh.D.K. Khanna, respondent no.1 (Advocate) in person and also on behalf of respondent no.2. Appeals under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT This order shall dispose of the two appeals bearing nos. 331 of 2015 titled as Chandigarh Administration & another Vs. Charanjit Kaur and 351 of 2015 titled as Finance Secretary, Chandigarh Administration & another Vs. Sh.D.K. Khanna & another, as the dispute on facts, in both these cases is somewhat similar.
The appellants/opposite parties have filed these appeals against the orders dated 05.06.2015 and 03.07.2015, passed in consumer complaint bearing nos.771 of 2014 and 762 of 2014, respectively, by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the Forum only), vide which, it partly accepted the complaints, filed by the respondents/complainants. Arguments were heard in common, in the above appeals. It was agreed by Counsel for the parties, at the time of arguments on 12.05.2016, that vide a consolidated order, both the appeals be disposed of. Under above circumstances, to dictate order, facts are being taken from Appeal No.331 of 2015 titled as Chandigarh Administration and another Vs Charanjit Kaur. The respondent has filed the above said consumer complaint before the Forum, wherein it was stated that the appellants had allotted a residential site, bearing no.4059-P, Sector 46-D, Chandigarh, on lease hold basis, for the period of 99 years, in favour of Sh.K.P. Tuli and Smt. Sushila Bhalla, vide allotment letter dated 20.01.1983 (Annexure C-1). The respondent purchased the said house, vide agreement to sell dated 21.10.1986 (Annexure C-2). The above named owners had also executed a Will and General Power of Attorney) in favour of the respondent. They also affirmed sale of the site, by executing an affidavit. On making deposit towards necessary dues, "No Objection Certificate" was issued by the appellants, in favour of the respondent, on 05.10.2006 (Annexure C-6). It was further case of the respondent that she applied for conversion of lease hold site to free hold site, qua the house purchased, as per Rules framed by the Chandigarh Administration, known as "The Chandigarh Conversion of Residential Lease-Hold Land Tenure into Free-hold Land Tenure Rules, 1996" (in short 1996 Rules). The respondent deposited the conversion fee to the tune of Rs.9400/- vide letter dated 29.04.2013 (Annexure C-8) alongwith requisite documents, to the appellants. Receipt dated 29.04.2013 (at page 33 of the Forum file) was issued by the appellants, in this regard. Her request was rejected, vide letter dated 21.08.2013 (Annexure C-10), whereby she was informed that her case could not be considered, as the Finance Department, has taken a decision that as the case of revision of rates for conversion of lease hold to free hold properties, is under consideration of the Administration, as such, no such further conversions be allowed. It was her specific case that conversion charges were accepted by the appellants and the process had already started, when her claim was unnecessarily rejected. She served a legal notice dated 24.09.2014 (Annexure C-12), upon the appellants, to do the needful. However, when she failed to get any relief, she filed the above said complaint. Upon notice, joint reply was filed by the appellants. Moving of an application for conversion aforesaid, by the respondent was admitted, which was received by them, in their office on 29.04.2013. It was stated that the request of the respondent was rejected because as per letter dated 10.05.2013, issued by the Finance Department, on account of pending revision of land rates, all conversions were stopped. It was further stated that the complainant was not a consumer, as such, no relief can be granted to her. In the rejoinder filed by the respondent, she reiterated all the averments, contained in the complaint and repudiated those, contained in the written version of the appellants. The parties led evidence, in support of their case. After hearing Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, and granted following relief to the respondent:-.
"i) To convert plot No.4059, Sector 46-D, Chandigarh from leasehold to free hold site on acceptance of requisite conversion fee.
ii) To pay an amount of Rs.10,000/-as compensation for mental agony and physical harassment to the complainant.
iii) To pay Rs.5,000/-as costs of litigation to the complainant."
Further direction was given to the appellants to comply with the directions given in the order impugned, within a period of one month, from the date of receipt of a certified copy of the same, failing which, it was directed that amount mentioned at Sr. no.(ii) shall be paid alongwith interest @12% p.a., from the date of filing the consumer complaint till realization, apart from compliance of directions given at Sr. Nos.(i) and (iii).
Hence this appeal.
Allotment of site no.4059-P, Sector 46-D, Chandigarh, in favour of Sh. K.P. Tuli and Smt. Sushila Bhalla, vide allotment letter dated 20.01.1983 (Annexure C-1), is not denied. It was also proved on record that the original owners, referred to above, sold the said site through an Agreement to Sell dated 21.10.1986, to the respondent. Original allottees also executed the Will etc. in favour of the respondent. The respondent had paid all the dues to the Administration, upon which "No Objection Certificate" was issued in her favour on 05.10.2006. In terms of 1996 Rules, the respondent applied for conversion of lease hold property into free hold. She moved an application on 29.04.2013. She also deposited the requisite amount and submitted necessary documents, so that action can be taken on her request. The amount deposited through the bank draft was accepted and process to take action was started. However, request was declined vide letter dated 21.08.2013. It was specifically stated by the appellants that rates fixed for conversion aforesaid, in the year 1996 was only for one year and the Administration has a right to enhance the rates, as per the provisions of 1996 Rules. On account of pending revision of land rates, conversion was stopped. The Forum on analysis of evidence and after hearing arguments, when granting relief to the respondent, vide the order impugned, observed as under:-
"8. We have carefully considered the above arguments of the learned Govt. Pleader. A narration of the facts above and the perusal of the documents (Annexure C-1 to C-9) reveals that the complainant applied for conversion of leasehold site into freehold site in respect of H.No.4059, Sector 46-D, Chandigarh and also deposited the conversion fee as per "The Chandigarh Conversion of Residential Lease-Hold Land Tenure into Free-hold Land Tenure Rules, 1996". The amount of conversion fee was accepted and it has not been denied by the OPs that OP-2 had also started the process of conversion from leasehold to freehold. The application for depositing the conversion fee was made by the complainant on 29.4.2013 and the amount was deposited vide demand draft dated 26.3.2013 and 27.4.2013. However, OP-2 refunded the amount deposited by the complainant vide letter dated 21.8.2013 (Annexure C-10) on the basis of the letter dated 10.5.2013 (Annexure R-III) sent by the Finance Department, Chandigarh. It is no doubt true that the Chandigarh Administration is competent to change any clause of the scheme at any time and to enhance/decrease the rate of conversion charges. However, it is significant that though OP-2 was intimated on 10.5.2013 by Chandigarh Administration Finance Department that the issue of revision of rate for conversion under the scheme was under consideration and he was directed not to allow any conversion order under the said scheme till further orders, yet, even after passing of more than two years, no decision has been taken by the OPs in respect of the revision of the rate for conversion. We feel that when the complainant had deposited the conversion fee vide letter dated 29.4.2013 and OP-2 accepted the amount of conversion fee and also started the process of conversion from leasehold to freehold site, the process of conversion could not be stopped midway. We are of the view that since no fresh notification has been issued by the Chandigarh Administration, therefore the conversion from leasehold to freehold could not be denied to the complainant merely on the basis of the letter dated 10.5.2013 on the ground that the issue of revision of rate for conversion is under consideration. It is settled law that any notification issued is to be implemented prospectively and not retrospectively.
We may mention that earlier one Mr. Raj Kumar filed a consumer complaint against the Chandigarh Housing Board etc. which was dismissed by the District Forum. Mr. Raj Kumar filed First Appeal No.339 of 2012 which was allowed by the Hon'ble State Commission, UT, Chandigarh on 11.1.2013 (Ex.C-18) wherein the following operative order was passed :-
"12. In view of the foregoing discussion, the appeal is accepted with costs and the order of the District Forum is set aside. The Opposite Parties are directed to:
i) Convert the Dwelling Unit No.2064, Sector 45-C, Chandigarh from lease hold basis to free hold basis, as per Rules.
ii) Pay Rs.10,000/-as compensation for mental agony and physical harassment to the complainant.
iii) Pay Rs.5,000/-as costs of litigation."
The OPs did not prefer any appeal against that order and that order became final and Mr. Raj Kumar filed an execution application for enforcement of the order under Section 27 of the Consumer Protection Act, which was allowed by the District Forum. The Chief Executive Officer and the Secretary of the Chandigarh Housing Board were sentenced to imprisonment by the District Forum, Chandigarh for non-compliance of the order passed by the Hon'ble State Commission, UT, Chandigarh. The Chief Executive Officer and the Secretary of the Chandigarh Housing Board went in appeal against the order passed by this Forum. A perusal of the copy of the decision dated 8.8.2014 (Ex.C-17) in First Appeal No.225 of 2014 titled Sh. Rodney L. Ralte, IAS and another Vs. Raj Kumar, passed by the Hon'ble State Commission, UT, Chandigarh shows that the officers of the Chandigarh Administration thereafter complied with the order on 12.6.2014. We are of the view that when the order passed in First Appeal No.339 of 2012 decided on 11.1.2013 (Ex.C-17) could be complied with on 12.6.2014, despite the directions given in the letter dated 10.5.2013 (Annexure R-III) of the Chandigarh Administration, in this case also the complainant could be given the relief of conversion of plot No.4059, Sector 46-D, Chandigarh from leasehold into freehold site. Once the complainant had deposited the requisite conversion fee, she became a consumer under the Consumer Protection Act and the act of refunding the conversion fee to her and not converting plot from leasehold into free hold site for such a long time amounts to deficiency in service on the part of the OPs."
It was noted that issue qua revision of rates was pending for the last two years, however, no decision was taken on it, by the Administration. It was said that once the amount deposited alongwith an application for conversion aforesaid, was accepted by the appellants and the process had started, it was not open to reject the request made by the respondent, midway, without any justification. It was further said that the provisions of 1996 Rules cannot be put at naught simply on the basis of a letter dated 10.05.2013. It was further observed that the request of one Mr.Raj Kumar was also declined by the appellants, under similar circumstances. He filed a consumer complaint, which was dismissed by the District Forum. Aggrieved of that, he filed First Appeal No.339 of 2012, which was allowed by this Commission, on 11.01.2013. Conversion of the lease hold site into free hold site was directed, besides granting compensation and litigation expenses. The appellants in that case, did not prefer to file an appeal. When action was not taken by the appellants in that case, in terms of order referred to above, an execution application for enforcement of the order under Section 27 of the Act was filed by the complainant. The Chief Executive Officer and the Secretary of the Chandigarh Housing Board were sentenced to imprisonment by the Forum, for non-compliance of the order, as a result whereof, they filed appeal before this Commission, against the order passed by this Forum. However, during pendency of the appeal, order passed by the Forum was implemented.
We are of the considered opinion that the view taken by the Forum is perfectly justified. The provisions of 1996 Rules stipulates that the allottees of lease hold sites can apply for conversion of the said sites into free hold sites. Conversion charges were to be paid as per Annexure "A", attached with those Rules, besides payment of registration charges etc. Annexure "A", Part-1 added with these Rules for conversion, provides at the end, the rates fixed @ Rs.1710/- per square meter, shall be applicable for a period of one year, from the date, as notified by the Estate Officer. The land rates applicable for calculating the conversion charges will be notified from time to time by the Administrator thereafter. However, as per admitted facts on record, thereafter, despite objections having been raised by the Audit Department, no attempt was made for a long period of more than 16 years, to refix the rates for conversion of the property from lease hold to free hold.
At the time of arguments, some documents were supplied to this Commission, which indicates that the Administration was alive to the question of revision of land rates for conversion, in the month of July 2012, but nothing was done. Even meetings in that regard were held, twice, in the year 2012. Above steps were taken, only on receipt of letter dated 05.10.2012, from the Govt. of India, Ministry of Home Affairs, indicating that it has come to the notice of above Ministry that at times, properties acquired by the U.T. Administration, were being disposed of at a rate below the market value of the land and without holding auction. It was directed that in the event, when any property is going to be disposed of, below the market rate, an approval of the Competent Authority be obtained. In this letter, there is no reference to the rates fixed under 1996 Rules. It appears that it was written in a different context to curve tendency of the Administration, to sell properties at a rate below the market price. After receipt of this letter, till the issuance of letter dated 10.05.2013, stopping conversion of the lease hold into free hold properties, a large number of conversions were allowed by the Administration. During pendency of the appeal, it was brought to the notice of this Commission, that in one case titled as Rajesh Verma and Smt. Shalu Verma, through their Attorney, one conversion was allowed vide order dated 10.05.2013. To know, as to how many conversions were allowed between the period starting from 05.10.2012 i.e. date when letter was received from the Ministry and 10.05.2013, when conversion was stopped, the Estate Officer was directed to supply the information. As per affidavit filed, following conversions were allowed between the said period:-
Sr.No. File no.
House No. and Sector Date of receipt of application 1 RPL-17365 1229, 19-B, Chandigarh 18.10.2012 2 RPL-17374 1311, 19-B Chandigarh 07.11.2012
3.
RPL-17373 1244, 19-B Chandigarh 08.08.2012
4. RPL-17358 1222, 19-B Chandigarh 29.06.2012
5. RPL-17162 3241, 15-D Chandigarh 08.11.2012
6. RPL-17831 458, 37-A, Chandigarh 12.04.2012
7. RPL-17631 373, 32-A, Chandigarh 14.09.2012
8. RPL-17406 3325, 32-D, Chandigarh 07.03.2013
9. RPL-17385 2432, 23-C, Chandigarh 01.01.2013
1. LRP-214 2724, 37-C, Chandigarh 12.11.2012
2. LRP-227 2737, 37-C, Chandigarh 17.05.2012
3. LRP-457 3092, 37-D, Chandigarh 07.12.2012
4. LRP-679 3570, 37-D, Chandigarh 02.01.2012
5. LRP-688 3516, 37-D, Chandigarh 09.08.2012
6. LRP-763 2452, 37-C, Chandigarh 28.09.2012
7. LRP-812 3019, 37-D, Chandigarh 08.06.2012
8. LRP-829 3235, 37-D, Chandigarh 11.06.2012
9. LRP-832 3238, 37-D, Chandigarh 29.03.2012
10. LRP-860 3534, 37-D, Chandigarh 10.01.2013
11. LRP-869 3543, 37-D, Chandigarh 21.09.2012
12. LRP-1153 1036-P, 38-B, Chandigarh 24.12.2012
13. LRP-1344 2870, 38-C, Chandigarh 17.09.2012
14. LRP-1386 3021, 38-D, Chandigarh 27.02.2012
15. LRP-1584 3476, 38-D, Chandigarh 07.06.2012
16. LRP-1630 87, 38-A, Chandigarh 29.06.2012
17. LRP-1682 185, 38-A, Chandigarh 04.07.2012
18. LRP-1710 848, 38-A, Chandigarh 25.07.2012
19. LRP-1722 860, 38-A, Chandigarh 11.02.2013
20. LRP-1963 3175, 40-D, Chandigarh 29.08.2012
21. LRP-1998 2110, 44-C, Chandigarh 21.02.2012
22. LRP-2054 2203, 44-C, Chandigarh 26.03.2007 04.01.2013
23. LRP-2209 751, 40-A, Chandigarh 25.01.2013
24. LRP-2350 2066, 44-C, Chandigarh 16.05.2012
25. LRP-2564 4051, 46-D, Chandigarh 09.12.2011
26. LRP-2652 138, 44-A, Chandigarh 29.01.2013
27. LRP-2675 161, 44-A, Chandigarh 05.07.2012
28. LRP-2707 218, 44-A, Chandigarh 08.06.2012
29. LRP-2741 2366, 44-C, Chandigarh 08.01.2013
30. LRP-3188 4119, 46-D Chandigarh 26.12.2012
1. M-13 1038, 46-B 10.09.2012
2. M-17 1224, 42-B 28.08.2012
3. M-6 1200, 42 07.06.2012
4. M-19 1032, 42-B 22.08.2012
5. M-20 1506, 42-B 13.07.2012
6. M-9 657, 43 23.03.2012
7. 19 1014, 42 20.11.2006
8. M-13 1219, 44 05.10.2010/ 06.12.2012
9. M-9 726, 43 20.12.2012
10. M-1 1144, 44 11.12.2012
11. M-9 699, 43 09.11.2012
12. M-9 1033, 46 10.12.2012
13. M-20 1515, 42 28.12.2012
14. M-19 1029, 42 30.11.2012
15. M-21 1263, 42 24.11.2012
1. RPL-18837 2252,Sector-15-C, Chandigarh 29.02.2012
2. RPL-18876 2552,Sector-23-C, Chandigarh 12.06.2012
3. RPL-18391 3006,Sector-20-D, Chandigarh 01.03.2013
4. RPL-18525 267,Sector-32-A, Chandigarh 24.01.2013
5. RPL-18528 333,Sector-32-A, Chandigarh 28.05.2012
6. RPL-18501 2326,Sector-23-C, Chandigarh 27.04.2012
7. RPL-18413 2304,Sector-23-C, Chandigarh 10.10.2012
8. RPL-18048 3082,Sector-20-D, Chandigarh 26.10.2012
9. RPL-18673 306,Sector-32-A, Chandigarh 20.12.2012
10. RPL-19565 1385,Sector-40-B, Chandigarh 04.12.2003
11. RPL-19560 1438,Sector-40-B, Chandigarh 27.06.2012
12. RPL-19500 1567,Sector-38-B, Chandigarh 10.07.2012
13. RPL-19560 1438,Sector-40-B, Chandigarh 27.06.2012
14. RPL-19313 2310,Sector-38-C, Chandigarh 25.05.2012
15. RPL-20088 2166,Sector-38-C, Chandigarh 15.05.2012
16. RPL-19172 2721,Sector-38-C, Chandigarh 08.05.2000
17. RPL-19891 33,Sector-33-A, Chandigarh 10.09.2012
18. RPL-20068 463,Sector-38-A, Chandigarh 23.09.2010
19. RPL-20047 446,Sector- 46-A, Chandigarh 25.05.2012
20. RPL-19940 2318,Sector-38-C, Chandigarh 23.09.2010
21. RPL-19172 2721,Sector-38-C, Chandigarh 08.05.2000
22. RPL-19771 1403,Sector-40-B, Chandigarh 24.08.2012
23. RPL-19601 523,Sector-36-B, Chandigarh 11.11.2003
24. RPL-20088 2166,Sector-38-C, Chandigarh 15.05.2012
1. RDP-238 238 11.05.2012
2. RDP-362 362 09.01.2013
3. RDP-379 379 26.04.2012
4. RDP-398 398 VACANT
5. RDP-554/2 554/2 07.05.2012
6. RDP-576 576 11.04.2012
7. RDP-612 612 19.06.2012
8. RDP-651 651 10.10.2012
1. IH-1259 1259/2, Sector-30-B 13.08.2012
2. IH-73-A 73-A Sector-30-B 18.02.2013
3. IH-89-A 89-A Sector-30-B 18.09.2012
4. IH-1267/2 1267/2 Sector-30-B 18.07.2012
5. IH-1294/1 1294/1 Sector-30-B 24.12.2012
6. IH-1363/2 1363/2 Sector-30-B 15.05.2012
7. IH-105-A 105-A Sector-30-B 12.11.2012
8. IH-1-B 1-B Sector-30-B 17.12.2012
9. IH-19-D 19-D Sector-30-B 16.11.2012 The above facts clearly indicates that the land rates fixed for conversion in the year 1996 had virtually been accepted by the Administration, valid for future period also. Those rates continued to be applied for the period of more than 16 years. The application was filed by the respondent for conversion before issuance of letter dated 10.05.2013. The provisions of said letter cannot be made applicable retrospectively. The application having been received; conversion charges paid and after starting the process, it was not open to the Authorities to reject the prayer made by the respondent.
Whether by issuance of one letter on the Administrative side, the provisions of 1996 Rules can be put at naught, is also a debatable question.
Counsel for the appellants has vehemently argued that since the respondent is a re-allottee, as such, she did not fall within the definition of consumer.
In the first instance, it may be stated here that reallottee of a unit i.e. the respondent falls within the definition of a consumer, as all the rights and interest vested in her favour, as she stepped into the shoes of their predecessors. Similar view, under similar circumstances, has been taken by the National Commission, in a case, titled as Vatika Limited Versus Mr.Rajneesh Aggarwal, Revision Petition No.525 of 2013, decided on 22.07.2014. Not only this, in the instant case, admittedly the respondent had paid conversion fee to the appellants, for the purpose, and as such, she falls under the definition of consumer. Further despite receiving the conversion fee, non-conversion of the unit into free hold, amounted to deficiency in providing service on the part of the appellants, for which, the present complaint was filed by the respondent before the Forum. The Forum was also right in holding so. In these circumstances, the objection taken by the appellants, in this regard, being devoid of merit, must fail and the same stands rejected.
Further contention of Counsel for the appellants that on the basis of one wrong committed, relief cannot be granted to the respondent, is also liable to be rejected. As has been referred to, in earlier part of this order, despite specific stipulation made in Annexure-"A" Part-1 of 1996 Rules that the rates will be fixed every year, it was not so done. The rates fixed in the year 1996 continued to be made applicable for conversion, for 16 years. By implication, those Rules were accepted by the Administration, as applicable for all years, till the time, conversion was stopped vide letter dated 10.05.2013. In above circumstances, application of the respondent was wrongly rejected by the appellants. No other point, was urged, by Counsel for the parties, in both the appeals. For the reasons recorded above, both the appeals, being devoid of merit, must fail, and the same are dismissed, with no order as to costs. The orders of the Forum are upheld. Certified copy of this order be placed in the file of appeal bearing No. 351 of 2015 titled as Finance Secretary, Chandigarh Administration & another Vs. Sh.D.K. Khanna & another Certified copies of this order, be sent to the parties, free of charge. The file be consigned to Record Room, after completion Pronounced.
16.05.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg