K.K. Srivastava, President:
1. This is an appeal filed by the Chandigarh Housing Board against the order dated 25.8.1999 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter referred to as the District Forum-I] in Complaint Case No. 187 of 1997, Shri Sukhdev Singh r/o H. No. 2148/1, Sector 40-C, Chandigarh v. Chandigarh Housing Board, Sector 9, Chandigarh. The District Forum-I has directed the appellant to refund the amount of Rs. 1,200/- initially deposited by the complainant/respondent on 7.1.1991 and a further sum of Rs. 4,540/- deposited as first instalment on 8.6.1994. The District Forum-I has not awarded any interest or any other ancillary relief to the complainant. The appellant/opposite party was directed to refund the said amount within one month from the date of receipt of copy of the order. The appellant/opposite party was allowed to allocate/allot the shed in question to the person whosoever is eligible/entitled to the same as per rules.
The facts giving rise to this appeal may briefly be narrated as under.
2. The complainant/respondent Shri Sukhdev Singh had applied for allotment of cycle shed. The application was submitted to the appellant/opposite party - Chandigarh Housing Board. The complainant/respondent had deposited a sum of Rs. 1,200/- initially on 7.1.1991 against a receipt issued by the appellant vide its copy on record as Annexure C-1. The allotment of cycle shed No. 225 in Sector 40-C, Chandigarh was made vide Allotment Letter No. HB(D)DA/AA3/93-94/643 dated 27.4.1984 costing Rs. 18,000/-. A copy of the allotment letter was placed on record as Annexure C-2. The complainant deposited the first instalment of a sum of Rs. 4,745/- comprising of Rs. 4,540/- as the first instalment plus Rs. 205/- as late fee. This amount was deposited by the complainant/respondent in the Bank of Rajasthan in the name of the appellant-Chandigarh Housing Board on 8.6.1994 at the direction of Chandigarh Housing Board. The remaining costs of cycle shed allotted to the complainant/respondent was to be paid in monthly instalments of Rs. 230/- after the physical possession of the cycle shed was handed over to the complainant. The possession of the cycle shed was not handed over to the complainant on the ground that the complainant failed to comply with certain terms and conditions made in the allotment letter Annexure C-2 regarding which a reminder had been sent by the appellant on 1.7.1994 (Copy Annexure-1). The deficiency on the part of the complainant was pointed out in this reminder letter dated 1.7.1994 as under :
â2. You have not furnished the following documents :
(1) H.P.T.A.
(2) Three specimen signatures duly attested by Gazetted Officer.
(3) Attested copy of pay-in-slip of Rs. 4,745/-.
3. You are, therefore, requested to submit the above mentioned documents within 7 days from the date of issue of this letter to proceed further for release of possession of Cycle/Scooter Shed No. 225.â
By another letter dated 17.8.1990 (Annexure O-2), the appellant-Chandigarh Housing Board wrote to the complainant/respondent that a sum of Rs. 225/- was outstanding against him on account of watch and ward charges for the period from 27.4.1994 to 31.8.1994. The complainant was required to deposit the said amount in five days from the date of issue of letter. The complainant/respondent sent a reply Annexure O-3 disputing claim of the Chandigarh Housing Board/appellant to charge watch and ward charges on the ground that the possession of the shed was still with the Chandigarh Housing Board. The reply of the complainant/respondent did not satisfy the appellant and eventually a notice (Copy Annexure O-6) was served on the appellant by the complainant/respondent through his Advocate Mr. O.P. Madan on 17.11.1995 contending, inter alia, as under :
â1. Now you are requested to presume notional possession of the said shed on 17.6.1994 the date on which the request was sent in black and white and charge watch and ward charges up to 16.5.1994 after deducting interest charges on Rs. 5,945/- at the rate of 18% per annum.
2. Or refund Rs. 5,945/- plus interest at the rate of 18% per annum up to the date of payment and consider the said shed as surrendered.â
3. The appellant sent a reply to the Show Cause Notice vide Copy Annexure O-7, vide which it was mentioned, inter alia, as under :
â(2) In this connection it is stated that the allottee was informed vide this office letter dated 5.10.1994 that a sum of Rs. 375/- was due up to 31.10.1994 on account of watch and ward charges which he should deposit within a week. However, he has failed to do so. Hence, till he clears all the up to date dues, he cannot be handed over the possession.
(3) In case the allottee wants to surrender above Cycle Shed No. 225/40-C, Chandigarh, he may make a written and unconditional request under his signatures and the Board shall refund the amount due, if any, as per terms of allotment.â
4. The matter, however, did not end there and the grievance of the complainant/respondent remained regarding the non-payment of amount deposited by him with interest and consequently this complaint was filed wherein the following prayer was made :
âIt is, therefore, most respectfully prayed that the Chandigarh Hosing Board may be ordered to either hand over the physical possession of the said cycle shed at the initial cost excluding watch and ward charges or to refund the amount deposited by the complainant with interest @ 18% from the date of deposit with the opposite party till the amount is actually refunded alongwith damages of Rs. 2,000/- for causing mental agony and harassment and a sum of Rs. 1,500/- as legal expenses.â
Upon service of notice of the complaint case, the appellant - Chandigarh Housing Board filed its reply wherein the claim of the complainant was registered on the ground that the complainant was at fault in not complying with the terms of the allotment letter within the prescribed time and he was liable to pay watch and ward charges from the date of letter of allotment. The claim of the complainant/respondent for the refund of amount with interest was also contested.
5. The complainant/respondent filed his evidence in the shape of his affidvait while the Chandigarh Housing Board opposite party/appellant filed affidvait of Sh. Naresh Kumar Saini, Supdt. (Dev.), Chandigarh Housing Board, Chandigarh.
6. The District Forum-I after dealing with the evidence led by the parties and referring to their respective contention concluded in the last but one para as under :
âSo in these sets of circumstances as mentioned above, now the complainant wants to remain content with the refund of his own money deposited long back viz. Rs. 1,200/- initially deposited on 7.1.1991 and Rs. 4,540/- as first instalment on 8.6.1994, without any interest and also without seeking any ancillary relief, statement of the learned Counsel for complainant to that effect is on record. So we deem it expedient to direct O.P. to refund the aforesaid amount deposited by the complainant without any interest or any other ancillary relief, within one month from receiving of copy of the order. The O.P. would be now at liberty to allocate/allot the shed to anybody, whosover is eligible/entitled to the same as per rules.â
7. The Chandigarh Housing Board felt aggrieved by the order passed by the District Forum-I, and has filed this appeal. The complainant after receiving the notice of appeal put in appearance through his Counsel Mr. Abnash Singh, Advocate. Record of the complaint case was summoned from the District Forum-I. We have heard the learned Counsel for the appellant as well as the learned Counsel for the respondent and have carefully perused the record of the case and gone through the order under appeal.
8. The learned Counsel for the appellant referred to the letter of allotment Annexure C-2 and drew our attention towards Condition No. 3 mentioned therein which reads as under :
â3. In case you accept the allotment you shall deposit a sum of Rs. 4,540/- (Rupees four thousand five hundred forty only) and the documents as detailed below within 30 days from the date of issue of this letter (the last day being hereinafter referred to as the `due-date).
| (i) | Total consideration | Rs. 18,100.00 |
| (ii) | Initial deposit | Rs. 5,430.00 |
| (iii) | Ground rent for first4 years | Rs. 80.00 |
| (iv) | Ist instalment | Rs. 230.00 |
| (v) | Any other amount | Rs. - |
| Total (ii) to (v) | Rs. 5,740.00 | |
| LESS: | ||
| (vi) | Amount already paid (subject to confirmation of Accounts Section of the Board) | Rs. 1,200.00 |
| (vii) | Net payable | Rs. 4,540.00 |
(b) Documentary proof in support of your being member of the Scheduled Castes/Scheduled Tribes-/Backward Class/Defence Personnel or an Ex-Serviceman, Handicapped and Pensioner (applicable in case of person who falls under any of these reserved categories).
(c) Hire Purchase Tenancy Agreement as prescribed under Regulations 2(21) and 31 of the Chandigarh Housing Board (Allotment, Management and Sale of Tenement) Regulations, 1979.
(d) A passport size photograph duly attested by a Gazetted Officer or a local M.P. or Member of the Board.
(e) Three specimen signatures duly attested by Gazetted Officer.
(f) ..........
The aforesaid amount and also all the monthly instalments payable in future alongwith other dues should be deposited in Bank of Rajasthan, Sector 17-C, Chandigarh. In the Current Account No. 2040 on the pay-in-slip book to be obtained from the above Bank.â
Thereafter reference was made to Condition No. 5(i), which runs as under :
â5(i). The possession of the cycle/scooter shed shall be handed over on receipt of the money and documents mentioned in Clauses 3 and 4 of this letter and if the physical possession thereof is taken within 60 days of the date of issue of allotment letter, no watch and ward charges shall be payable. However, where physical possession is taken at site beyond the period of 60 days of the date of issue of allotment letter, you shall pay watch and ward charges Rs. 50/- per month upto 6 months from the date of issue of allotment letter.
In case the physical possession of the property is not taken at site within 6 months of the date of issue of allotment letter, the allotment/tenancy of the cycle/scooter shed shall be liable to be cancelled.
Provided that without prejudice to the right of the Board to cancel the allotment/tenancy you shall pay watch and ward charges at double the rate prescribed above beyond the period of 6 months of the date of issue of allotment letter, to the date of cancellation of allotment/tenancy or to the date of taking over of the physical possession, whichever is earlier.â
9. It was urged by the learned Counsel for the appellant that since the complainant/respondent was at fault in not complying with the terms and conditions as contained in sub- paras (a) to (e) in Condition No. 3 of the letter of allotment, he was liable to pay watch and ward charges which are mentioned in Condition No. 5(i) of the letter of allotment.
10. We have carefully gone through the order of the District Forum-I and we find that the District Forum-I duly noted the fact that the appellant-Chandigarh Housing Board failed to deliver possession of the Cycle Shed No. 225 allotted to the complainant and instead of handing over the possession, the Chandigarh Housing Board laid claim to the watch and ward charges from the complainant. The District Forum-I considered this matter as under :
â.....From perusal of the aforesaid letter O-1 written by the O.P., it is apparent that the O.P. is called for the submission of the aforesaid 3 documents only and which had been duly submitted by the complainant. It is expressly mentioned in para 3 of the aforesaid letter O-1 that in the event these documents were furnished, they will proceed further issuance of possession of Cycle Shed No. 225. But instead of handing over the posession, the O.P. had again come up with the plea for seeking deposit of certain other amounts with regard to watch and ward charges. As mentioned earlier, there is absolutely no mention of seeking watch and ward charges from the complainant in the letter O-1; so whatever was sought for from him through that letter, the complainant had complied with. But still even till today the possession of shed has not been given to the complainant. So in these sets of circumstances, the amount of complainant which stood deposited long back is still with the O.P., who have neither refunded nor have allotted the shed......â
11. In our considered view, the District Forum-I has rightly held that the appellant - Chandigarh Housing Board could not charge watch and ward charges from the complainant without handing over physical possession of Cycle Shed No. 225 which was allotted to the complainant. It may be mentioned that a lease of immovable property is brought into existence only after the delivery of the possession of the demised property by the lessor to the lessee and after actual physical possession is so delivered, the liability of lessee would start regarding the payment of lease money and any other incidental charges regarding the use of the same. In the instant case, the appellant - Chandigarh Housing Board without handing over the possession of the Cycle Shed No 225 to the lessee i.e. the complainant/respondent has claimed watch and ward charges as incidental to the lease of Cycle Shed to the complainant/respondent.
12. The lease is defined Under Section 105 of the Transfer of Property Act as under :
â105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, on consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.â
13. It will appear from the definition of lease quoted above that in order to be a lease, the transfer of right to enjoy the immovable property as per-requisite. The demise of the immovable property constitute the lease and the lessee has a right to enter into possession of the immovable property leased to him. An agreement to lease in creating a present demise is not a lease.
14. Section 107 of the Transfer of Property Act provides about the allegation of the lease and inter alia, lays down as under :
â107. A lease of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lesses :
Provided that the State Government may, from time to time, by Notification in the Official Gazette, direct that lease of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving an yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.â
15. In the instant case, undisputedly, the possession of the Cycle Shed No. 225 was not handed over by the appellant - Chandigarh Housing Board to the complainant/respondent.
16. In view of the forgoing discussion, the appellant - Chandigarh Housing Board could not legally claim watch and ward charges from the complainant/respondent and in our considered view the District Forum-I, U.T., Chandigarh has rightly held so. We find no infirmity either in fact or in law in the order of the District Forum-I, U.T., Chandigarh. The appeal lacks merit and is dismissed. Costs of the appeal shall, however, be borne by the parties themselves.
Copies of this judgment be supplied to the parties free of charges.