RESERVED

      STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                   UTTAR PRADESH, LUCKNOW

                                    COMPLAINT NO. 101 OF 2018

1. Neelam Sachdeva

W/o Late Anil Kumar Sachdeva

2. Shravani Sachdeva

D/o Late Anil Kumar Sachdeva

Both R/o House No.73, Sector-M

Aashiyana, Lucknow-226012

                                                                                          ...Complainants

                                                           Vs.

1. The Vice Chancellor

Agra Development Authority ADA

2. The OSD, Agra Development Authority ADA

Both Official Address Jaipur House

Ratan Muni Road, Near Sales Tax Office

Agra, U.P. 282010     

                                                                                      ...Opposite Parties

BEFORE:

HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT

HON’BLE MR. MAHESH CHAND, MEMBER

For the Complainant           :    Ms. Ritu Sood, Advocate.

For the Opposite Party        :                     

Dated :  19-07-2018

                                                  JUDGMENT

        PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT

This is a complaint filed before State Commission under Section 17 of the Consumer Protection Act 1986  by complainants Neelam Sachdeva and Shravani Sachdeva against opposite parties namely The Vice Chancellor, Agra Development Authority ADA and The O.S.D., Agra Development Authority ADA seeking following reliefs:-

“It is therefore most humbly and respectfully prayed to this Hon’ble UPSCDRC to issue direction to respondents to

1. To transfer the House No. D 211 Kedar Nagar Agra in the name of complainant No.1 Neelam Sachdeva wife of late Anil Kumar Sachdeva solely on the basis of Will without insisting her to Probate the Will. The complainants are ready to pay stamps cost

etc. and all formalities which are required to transfer the said house in her name. Value around Rs 25 to 45 lakhs exact value not Known – Maximum Value around Rs 25 to 45 Lakhs exact value not Known.

2. To accept the certified copies of sale deed of Tehsil Sadar Agra without insisting her to provide original copies of sale deed.
3. To transfer the House No. D 211 in the name of complainant No.2 Shravani Daughter of deceased Anil Kumar Sachdeva in case of the death of complainant Neelam Sachdeva if the complainant dies before the pendency of this complaint or anytime after her death if the said house is not alienated by her mother Neelam Sachdeva
4. To take cognizance of evidence that will be submitted by the complainant in later stage of this complaint by submitting affidavit of Executor, Witnesses etc as a proof of Verifying/Testifying the Will and same must be treated as a complete formality for the verification of will as the will is unregistered only executor and witnesses can testify it.
5. To provide cost of mental harassment/agony towards deficiency in service @ 2,00,000 to each complainants  - Rs.4,00,000
6. To provide the cost of this litigation  -  35,000

It has been stated by complainants in complaint that Sri Anil Kumar Sachdeva husband of complainant No.1 and father of complainant No.2 has purchased House No. D 211 Kedar Nagar Shahganj, Agra from Ajit Kumar Bhaumik who was registered allottee of said house.

It has been further stated by complainants that said Ajit Kumar Bhaumik had executed a power of attorney in the name of Anil Kumar Sachdeva soon after allotment of said house which is in the record of Agra of Agra Development Authority.

In complaint it has been further stated that said Ajit Kumar Bhaumik executed an unregistered will deed on 17-02-2002wherein it has been stated that he has sold the above house to Anil Kumar Sachdeva.

In complaint it has been stated that the above house was in possession of said Anil Sachdeva since the date of construction and on the basis of will

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deed executed by Ajit Kumar Bhaumik the said house after his death on 06-01-2004 has vested in Anil Kumar Sachdeva and his legal heirs complainants Neelam Sachdeva and Shravani Sachdeva.

In complaint it has been stated that Anil Kumar Sachdeva husband of complainant No.1 and father of complainant No.2 died on 24-12-2016. Thereafter complainants moved application for mutation before opposite party No.1. But opposite party No.1 has refused mutation on following grounds:-

1. The Will is unregistered.
2. The Will has to be probated.
3. The Will should be proved by attesting Witnesses.

In complaint it has been stated by complainants that the probate is not required in State of U.P. Opposite parties have refused mutation prayed by complainants against law and have thereby committed deficiency in service.

We have heard learned Counsel for the complainants on maintainability of complaint under the Consumer Protection Act 1986.

Learned Counsel for the complainants has contended that complainants are beneficiaries of the allottee of opposite parties and are consumers of opposite parties as defined in Section 2(1)(d) of the Consumer Protection Act 1986.

Learned Counsel for the complainants has further contended that opposite parties have refused mutation against provision of law and have thereby committed deficiency in service. As such complaint is maintainable under the Consumer Protection Act 1986.

Learned Counsel for the complainants has referred following case laws:-

1. Delhi Development Authority and others V/s Shri Shanti Swaroop Goyal and others decided on 27-07-2012 by Hon’ble High Court of Delhi.
2. Manoj Kumar V/s Narwana Cooperative Group decided on 04-04-2013 by Hon’ble National Commission in Revision Petition No.

3879 of 2012.

3. C.K. Mohanasundaran V/s K. U. Gopalakrishnan Nair decided on 18-02-2011 by Kerala State Commission in Appeal No. 230/2010.
4. Smt. Nisha Kumari V/s State of U.P. and others decided on 23-05-2014 by Hon’ble Allahabad High Court in Writ – C No. 61669 of 2010.
5. Lucknow Development Authority V/s M K Gupta decided on 05-11-1993 by Hon’ble Supreme Court of India 1994 AIR 787.

We have considered the submission made by learned Counsel for the complainants and have perused complaint carefully.

Averments made in complaint clearly show that the dispute raised in complaint requires adjudication and declaration of title and ownership of house in question. But under the Consumer Protection Act 1986 title and ownership of immovable property cannot be adjudicated. As such we are of considered view that the complaint is not maintainable under the Consumer Protection Act 1986.

Case laws referred above are not helpful to complainants on facts of present case.

In view of above complaint is dismissed with liberty to complainants to approach competent court in accordance with law.

Let copy of this order be made available to the complainants positively within 15 days as per rules.

                                                                ( JUSTICE A H KHAN )

                                                                                 PRESIDENT

                                                                      (MAHESH CHAND )

                                                                                      MEMBER                                                                                    

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