State Consumer Disputes Redressal Commission
Smt. Veena Devi. vs Chief Executive Officer Himuda. on 30 December, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 155/2019
Date of Presentation: 17.04.2019
Order Reserved on : 07.08.2019
Date of Order : 30.12.2019
......
Smt. Veena Sharma Anand Niwas Pine Estate Deonghat Post
Office Saproon District Solan H.P.
...... Appellant/Complainant.
Versus
Chief Executive Officer HIMUDA Nigam Vihar Shimla-171002
......Respondent/Opposite party.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr.Sukh Dev Sharma Advocate.
For Respondent : Mr.Vivek Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 20.03.2019 passed by Learned DCF/DCC in consumer complaint No.18/68 titled Smt. Veena Sharma Versus Chief Executive Officer HIMUDA.
Brief facts of consumer complaint:
2. Smt. Veena Sharma filed consumer complaint under Consumer Protection Act pleaded therein that 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 complainant is widow of deceased Rajender Sharma and is retired from Indian Audit and Accounts Department. It is pleaded that husband of complainant namely deceased Rajender Sharma executed hire purchase agreement with HIMUDA relating to Flat No.5 Block No.15 category-I situated in Housing Board Colony Sanjauli District Shimla H.P. It is further pleaded that flat in question was allotted to Rajender Sharma husband of complainant on dated 20.06.2007 by HIMUDA. It is pleaded that deceased Rajender Sharma suffered massive heart attack and died on dated 20.10.2013. It is pleaded that till death of deceased Rajender Sharma has paid amount of Rs.1009976/- (Ten lac nine thousand nine hundred seventy six) to HIMUDA relating to flat in question. It is pleaded that in the month of January 2015 complainant approached HIMUDA with request to transfer flat in question in her name and thereafter HIMUDA authority told complainant that she would have to pay balance consideration amount of Rs.1987887/- (Nineteen lac eighty seven thousand eight hundred eighty seven).
3. It is pleaded that complainant sought waiver of penal interest because HIMUDA did not send any demand notice to complainant after death of Rajender Sharma till January 2015. It is pleaded that complainant cleared all dues. It is pleaded that HIMUDA did not transfer flat in 2 Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 question in the name of complainant after payment of entire dues on the ground that Rahul alias Rohit Sharma objected to transfer of flat in question in the name of complainant. It is pleaded that Rohit was disowned by deceased Rajender Sharma and complainant from movable and immovable property on dated 23.02.2010 by way of proper notice published in newspaper The Tribune and affidavit attested before Notary on dated 22.02.2010. Complainant sought relief to the effect that HIMUDA be directed to transfer flat in question in the name of complainant Veena Sharma being nominee and successor of deceased Rajender Sharma. In addition complainant sought relief of payment of Rs.20000/- (Twenty thousand) for unethical behaviour of HIMUDA authority. In addition complainant sought relief of payment of Rs.30000/- (Thirty thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
4. Notice was issued to HIMUDA but none appeared on behalf of HIMUDA before Learned DCF/DCC and Learned DCF/DCC on dated 03.08.2018 proceeded ex-parte against HIMUDA. Complainant adduced ex-parte evidence.
5. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order of Learned DCF/DCC complainant filed present appeal before State Commission.
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Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that deponent has paid entire consideration amount of flat in question to HIMUDA but despite payment of entire consideration amount HIMUDA did not transfer ownership of flat in question in favour of deponent. State Commission has carefully perused all annexures filed by complainant.
9. Submission of learned Advocate appearing on behalf of complainant that Rahul alias Rohit Sharma was disinherited from movable and immovable property vide affidavit Annexure C-5 attested by Notary at Chandigarh on 22.02.2010 and publication was also effected in newspaper The Tribune dated 23.02.2010 Annexure C-7 and on this 4 Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 ground appeal filed by complainant be allowed is decided accordingly. State Commission has carefully perused family register placed on record issued by Panchayat Secretary Gram Panchayat Bag Domehar Block Development Jubbal-Kotkhai Annexure C-8 dated 14.06.2018. As per family register Annexure C-8 deceased Rajender Singh left behind his wife Veena Devi complainant and two sons namely Atul and Rahul. There is recital in family register that deceased Rajender Singh died on dated 21.10.2013. State Commission is of the opinion that parties in the present complaint are governed by Hindu Laws and as per Hindu Succession Act 1956 widow and sons fall in Class-I heirs simultaneously.
10. State Commission is of the opinion that as per Hindu Succession Act 1956 any Hindu may dispose of by WILL or other testamentary disposition any property in accordance with the provisions of the Indian Succession Act 1925 or any other law for the time being in force applicable to Hindus. State Commission is of the opinion that Hindu could disinherit Class-I heir by way of testamentary document i.e. WILL. There is no evidence on record in order to prove that deceased Rajender Sharma has executed any testamentary document disinheriting Rahul alias Rohit by way of WILL.
State Commission is of the opinion that as per Hindu Succession Act 1956 a male Hindu falls in Class-I could be 5 Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 disinherited from property by way of execution of WILL or Sale Deed or Gift Deed. There is no evidence on record in order to prove that deceased Rajender Sharma has disinherited Rahul alais Rohit from immovable property by way of WILL, Sale Deed, Gift Deed etc. State Commission is of the opinion that a male Hindu could not be disinherited from immovable property by way of affidavit attested by Notary and by way of publication in newspaper as per laws.
11. It is proved on record by document Annexure C-11 that Rohit has also died and death certificate has been issued by Registrar (Death and Birth) Department of Health Services and Family Welfare Indira Gandhi Hospital Shimla on dated 14.07.2015. In view of above stated facts State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to transfer ownership of flat in question in favour of complainant and other heirs of deceased Rajender Sharma after production of Succession Certificate relating to flat in question from competent civil court of law because as per affidavit filed by complainant she has paid all dues relating to flat in question to HIMUDA and HIMUDA has not rebutted the same facts by way of filing version or by way of filing counter affidavit in evidence.
12. Submission of Learned Advocate appearing on behalf of complainant that complainant has been mentioned 6 Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 as nominee and on this ground HIMUDA be directed to transfer ownership of flat in question in favour of complainant by way of sale deed is decided accordingly. State Commission is of the opinion that as per law nominee is only trustee. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to order transfer of flat in question in favour of trustee i.e. complainant as of today.
13. Submission of Learned Advocate appearing on behalf of complainant that HIMUDA is under legal obligation to pay compensation to complainant to the tune of Rs.20000/- (Twenty thousand) for unethical behaviour is decided accordingly. There is no corroborative evidence on record in order to prove that HIMUDA Authority has committed unethical behaviour with complainant. Plea of complainant that HIMUDA Authority has committed unethical behaviour with complainant is defeated on the concept of ipse dixit (An assertion made without proof).
14. Submission of Learned Advocate appearing on behalf of complainant that complainant is entitled for litigations costs to the tune of Rs.30000/- (Thirty thousand) is decided accordingly. State Commission is of the opinion that flat in question was allotted by HIMUDA to deceased Rajender Sharma and as per family register Annexure C-8 deceased 7 Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 Rajender Sharma has left behind his wife complainant and two sons. As per record placed on record one son namely Rahul alias Rohit has also died and his LRs are legally entitled to inherit share of Rahul alias Rohit as per Hindu Succession Act 1956. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to impose costs upon HIMUDA to the tune of Rs.30000/- (Thirty thousand) as prayed keeping in view facts and circumstances of matter.
15. Submission of Learned Advocate appearing on behalf of HIMUDA that order of Learned DCF/DCC is in accordance with laws and in accordance with proved facts is decided accordingly. State Commission is of the opinion that order of Learned DCF/DCC warrants interference by State Commission partly for execution of sale deed in favour of complainant and other legal heirs of deceased Rajender Sharma after production of Succession Certificate relating to flat in question by complainant from competent Civil Court of law because complainant has filed affidavit that HIMUDA has received entire consideration amount of flat in question and affidavit filed by complainant remained unrebutted on record. Point No.1 is decidedly accordingly.
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Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 Point No.2: Final Order
16. In view of findings upon point No.1 above appeal filed by complainant is partly allowed. It is ordered that HIMUDA shall execute sale deed in favour of complainant and other legal heirs of deceased Rajender Sharma within one month after production of Succession Certificate relating to flat in question by complainant from competent Civil Court of law if complainant has paid entire sale consideration amount of flat in question to HIMUDA. Other reliefs sought by complainant are declined in the ends of justice and on the principles of natural justice. Order of Learned DCF/DCC is modified accordingly. Parties are left to bear their own litigation costs before State Commission. Copy of family register issued by Panchayat Secretary Gram Panchayat Bag Domehar Block Development Jubbal-Kotkhai Annexure C-8 dated 14.06.2018 and certificate issued by HIMUDA that there is no outstanding or overpaid amount Annexure C-10 dated 27.06.2016 and death certificate of Rohit Annexure C- 11 issued by Registrar (Birth and Death) Department of Health Services and Family Welfare Indira Gandhi Hospital Shimla shall form part and parcel of order.
17. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to Learned DCF/DCC forthwith for information and file of State Commission be consigned to record room 9 Veena Sharma Versus Chief Executive Officer HIMUDA F.A. No.155/2019 after due completion forthwith. F.A.No.155/2019 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 30.12.2019 Manoj 10