State Consumer Disputes Redressal Commission
Padmashree Prof. S.A.H. Abidi, vs Sansad Vihar Cooperative Group Housing ... on 25 April, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 25-04-2008 Complaint Case No.07/73 Padmashree Prof. S.A.H. Abidi, S/o Shabbir Hasan Abidi, R/o 7188 B-10, Vasant Kunj, New Delhi-110070 . Complainant Versus 1. Sansad Vihar Cooperative Group Housing Society Ltd. Through its Office Bearers, Regn.No.585 (GH) Dated11.08.1983, Plot No.2 Sector-3, Dwarka Phase-I, New Delhi-110045 . . . Opposite Party No.1 Through Mr.Rakesh Chaudhary, Advocate 2. Commissioner of Police, I.P. Estate, New Delhi-1100 02 Opposite Party No.2 CORAM: Mr. Justice J.D.Kapoor, President Ms. Rumnita MIttal, Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D.Kapoor (Oral)
1. Briefly stated the facts leading to the present complaint as alleged by the complainant are that Opposite Party (O.P in short) No.1 is a Cooperative Group Housing Society of which Mrs. Samina Abidi was a member and she was owner of flat No.A-404, Plot NO.2 Sector-3 Dwarka Phase-I, New Delhi. After taking possession of the flat she put her furniture and other household goods in it and locked it. Unfortunately, she along with her only child Ms. Sara died in a car accident on 16.04.2005. Her husband Mr. Shakeel Abidi, son of the complainant, also died on 04.05.2005. As per the Muslim Personal Law, complainant is the legal heir of Mrs. Samina Abidi.
After the complainant came out of the shock and depression of losing his kin, he visited the flat in question in the first week of November 2006 and found that someone as tenant of OP-1 had occupied the flat. On enquiry it was revealed that the office bearers of OP-1 Society had trespassed into the flat by breaking open the locks and let out the same and had misappropriated the furniture and the household goods lying in the flat. Complainant issued a legal notice to OP-1 in response to which OP-1 asked the complainant to obtain a succession certificate from the court. According to the complainant as per section 218 of the Indian Succession Act of 1925, no letters of administration are required to establish any right to property left by a Mohammedan dying intestate.
2. Since no action was initiated by OP-1 to restore possession of the flat and the household goods etc, complainant filed a complaint with the S.H.O. Sector 23, Police Station Dwarka on 02.12.2006 but no FIR was registered because the office bearers are influential people being Ex. MPs and Ex. Union Ministers.
3. By way of this complaint the complainant is seeking possession of the flat, compensation of Rs. 10 lacs from OP-1 for mental agony Rs. 8 lacs on account of furniture and household goods removed from the flat, Rs.5 lacs as rent received and recovered by OP-1 from the tenant, Rs. 5 lacs as damages for illegally depriving the complainant of his right of possession of the flat, Rs.5 lacs as damages from OP-2 for not registering the FIR against the persons named in the complaint. Interest has also been claimed on all these amounts.
4. OP-1 in its reply denied all the allegations made by the complainant including the factum of death of Mrs. Samina Abidi, Ms. Sara Abidi and Mrs. Shakeel Abidi. It is denied that Mrs. Samina Abidi kept any furniture etc in the flat or that the flat has been trespassed into and the goods have been misappropriated. According to OP-1, as per letter Annexure A-11 to the complaint, there are other legal heirs also of Mrs. Samina Abidi and the matter can be resolved only after judicial adjudication by a Civil Court. OP 1 also contended that the omplaint filed with the police was false.
5. OP-1 has also raised the preliminary objections that the complaint has been filed bypassing the provisions of the Delhi Cooperative Societies Act, 2003; that there is no privity of contract between the parties as Ms. Sara Abidi, daughter of the deceased member, was the nominee; that the complainant is alleging criminal trespass, theft, breach of trust and cheating and adjudication of these allegations are not under the purview or jurisdiction of the Commission.
6. The stand taken by OP-2 regarding non-registration of FIR is that complaint was enquired into but no cognizable offence was found to have been committed and hence no FIR was registered. The rejoinder filed by the complainant reiterating his allegations in the complaint and refuting the contentions raised by the O.P. as well as affidavits by way of evidence filed by both the parties are on record.
7. Complainant has filed rejoinders reiterating the averments made in the complaint. Complainant and OP-1 have filed their evidence by way of affidavits.
8. Since the pleadings and evidence were complete long time back and, therefore, the complaint is being decided on merits as provided under sub-section 2(c) of Sec. 13 of the Consumer Protection Act, 1986, prescribing that if the complainant fails to appear on the date of hearing the District Forum or for that purpose the State Commission or the National Commission may either dismiss the complaint in default or decide it on merits.
9. Mrs. Samina Abidi was the daughter-in-law of the complainant; she, her husband and their only child have pre-deceased the complainant who is now the only legal heir of Mrs. Samina as per the Muslim Personal Law. Deceased Mrs. Samina was owner of the flat in question in the OP-1 society and after taking possession of the flat she had put her furniture and other household goods in the flat and locked the same. On a visit to the flat, complainant found that someone as tenant of OP-1 had occupied the flat. A complaint was lodged with the police but no FIR was registered by it. OP-1 has failed to deliver possession of the flat to the complainant as LR of Mrs. Samina Abidi.
10. At the outset, the Ld. Counsel for the O.P. has stated that there is no person in occupation of the flat in question and the flat is lying locked and is in the custody of the Society and for want of Succession Certificate in favour of the complainant, the membership cannot be transferred in his name nor can the possession be handed over to him.
11. The complainant is claiming himself as the legal heir by virtue of Muslim Personal Law and the insistence of O.P. to produce succession certificate is illegal as Section 218 of the Indian Succession Act, does not require any Letters of Administration to establish the right to property left by a Mohammedan dying intestate.
12. However, in this regard, the Ld. Counsel for O.P. has referred to and relied upon the letter dated 13-02-2007 sent by the complainant to the Secretary of O.P-Society clearly mentioning that the deceased left behind four LRs and all of them have given NOCs in his favour.
In the same letter it was specifically mentioned that the son of the complainant who was husband of the Member of the Society died along with grand daughter Ms. Sara Abidi who was the only child of Mst. Sameena Abidi.
13. As is apparent from the aforesaid facts the complainant and his wife and two sons were the only LRs of the deceased Member of the Society.
14. In view of the NOCs given by the other LRs which can be deemed as relinquishment deeds, O.P.1 can hand over the possession of the flat to the complainant as under the Muslim Personal Law no succession certificate is required and no administration certificate is required in respect of a property of a Mohammedan member.
15. In the result, we direct that the O.P. shall, on the basis of NOCs issued by other LRs, register the complainant as owner of the flat and hand over possession to him within two months from the date of receipt of this order.
16. Complainant is disposed of in aforesaid terms.
17. Copy of this order as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK