EXECUTIVE ENGINEER AND ADMINISTRATIVE OFFICER TRICHY HOUSING UNIT vs TRICHY DISTRICT CONSUMER COUNCIL

THE Executive Engineer and Administrative Officer, Trichy Housing Unit, Tamil Nadu Housing Board is the appellant in all these appeals. About 32 complaints were filed before the District Consumer Disputes Redressal Forum, Tiruchirappali.

THE common case of the complaint is thus: THE complainants were allotted houses by the appellant and the complainants were asked to deposit certain sums of money as the price of the same and agreements were also entered into between the parties. But after the construction was completed and they were handed over possession, the complainants found various defects in the construction. THE defects were as follows: THE sealing was leaking; cracks had developed in the walls; the electrical installation was done with sub-standard materials; the doors, windows and other wooden fittings were all made of inferior quality and they are decaying. Only after the houses/were handed over and in the course of occupation over time, the complainants came to know these defects. In spite of several requests by the complainants, the Housing Board did not take any steps to rectify or carry out the repairs. Not less than a sum of Rs. 60,000/- would be required to carry out the repairs. THErefore, in such circumstances, the complaints have been lodged directing the opposite party to compensate the complainants for the expenses to be incurred by them for carrying out the repairs and towards mental agony since there is deficiency in service on the part of the opposite party. The Housing Board contended that the houses were constructed properly and all amenities and facilities were provided. The complainants have availed of loan facilities from HUDCO and thus the constructions were made. Only after inspecting and being satisfied about the nature of the construction and condition of the building, the complainants took possession of the same. The materials used for the construction were of standard quality. The woods used in the wood work were of good quality and not of an inferior quality. There is no leakage in the ceiling nor there were any cracks. The complainants have been living in the houses constructed and allotted to them and having lived for some time to come and say that there are defects now, it will be untenable for them to say so. There is no deficiency in service. If at all there are any defects, it may be due to the failure on the part of the occupants to maintain the houses in proper condition. The other allegations that during rainy days, there is leakage of water from the ceiling in the kitchen and other places is equally false. There was an agreement between the appellant/opposite party and the builders under which the builders are bound to maintian the building for a period of three years. Now that period has expired and, therefore, the present complaints are not tenable in law. The constructions were all made keeping in view the departmental instructions, guidelines and other prevailing construction norms. Having resided in the building for over a long period, the complainants are estopped from now saying that there are defects or that there are repairs to be carried out. Therefore, the opposite party had requested that the complaints be dismissed.

The lower Forum held that there was deficiency in service, but, however, awarded a sum of Rs. 2,000/- as compensation and further directed the opposite party to pay a cost of Rs. 250/- to each of the complainants.

AGGRIEVED by the said decision, the Housing Board/opposite party has come forward with these appeals. In all these cases, the occupants of the houses have come foward with these complaints nearly after three years. It is not disputed that the Housing Board entered into an agreement with the third party and entered into an agreement with them. The said third party namely M/s. R.P.P. Constructions, Erode had entered into an agreement with the Housing Board for the period of 3 years for the maintenance of the building. The said agreement admittedly expired. The complainants did not raise any question about the nature of construction immediately or even a year of their occupation. The contention that they came to know about the defects only after a couple of years cannot be accepted as a valid one. The agreement Ex. B2 provides that the lessor shall not be responsible for any defects, structural or otherwise, in the property and the lessee shall be bound to purchase the property notwithstanding defects, if any, on construction, without any claim for compensation from the lessor. It further stipulates that the lessee/purchaser shall be liable to maintain the property in good and tenable condition and shall carry out all repairs, structural or otherwise and shall annually whitewash the property. Under Clause 9, it is provided that if the lessee fails to carry out any repairs to the property, which in the opinion of the Allottee Service Manager or the lessor are necessary or if the lessee fails to pay any taxes or other dues which under the terms of indenture, the lessee is bound to pay, the lessor may carry out such repairs or make such payments on behalf of the lessee and after a notice in writing is given to the lessee by lessor and on the lessee committing default for one week in complying with such notice. Under Clause 31, it is provided that it is specifically agreed between both the parties that if any structural defect develops within three years in the foundation or within two years in the superstructure from the date of allotment, the Housing Board will rectifiy the same at its costs or if such defect develops after the above said periods, it is for the allottees to get the defect rectified at their costs. Therefore, in view of the above conditions, it is impossible to accept the contentions of the complainants that Housing Board is liable for any damages or bound to compensate the complainants. There is one another point to be put forward. Though the lower Forum has held that the party who actually did the construction is not a necessary party, we are of the view that this observation of the lower Forum is incorrect. There has been an agreement between the Housing Board and the other party for the construction of the flats. After construction and completion of the works, the complainants have taken possession. Now, they are claiming compensation on the ground of deficiency of service and that there are defects in the construction and that repairs have to be carried out for which they have to spend some amount. Unless the builder is present, it will not be possible to decide that aspect. Moreover, when the defects are alleged and it is denied by the other party, it becomes a matter of the resolution for the lower Forum. Necessarily evidence has to be let in and it has to be decided whether there are such defects and whether those defects were the result of bad constrution or usage of inferior quality materials or whether the defects were the result of acts of nature or acts of occupants. All these matters have to be thrashed out, which can be done effectively only in a civil suit, especially when there is a lease-cum-sale agreement between the parties and when the conditions are such that the remedy of the complainants is only to approach a Civil Court. When there is an affirmation and denial and when that fact which is affirmed has to be established by adducing elaborate evidence. It is but proper that the Forum to decide, it must be only a Civil Court, which would be competent to decide these issues. Further when the builder is absent from the scene and when allegations are made about the quality of construction and about the quality of materials used for the construction, righly it is necessary that the builder be also present so that the veracity of the complaint can be tested more effectively in the presence of the builder. Therefore, the failure to implead the builder is also an indication of the fact that the complaints are misconceived. Therefore, in our view, these complaints cannot be entertained since, in our opinion, this is not a case where any deficiency in service can be urged. Even if it comes to that at best it may be a case of breach of contract or a case made out for damages in a Civil Forum. Here the service was rendered and completed and the houses have been delivered after the completion of the construction. The complainants lived in those houses for more than 3 years and have leisurely come to the Consumer Forum complaining about the quality of the construction. This itself would shold that their claim cannot be maintained nor it can be brought under the purview of Section 12 of the Consumer Protection Act, 1986. In this view of the matter, we hold that the orders of the lower Forum cannot be sustained and deserve to be set aside in all these cases. Consequently all these appeals viz. A.P. Nos. 162/2000 to 172/2000 have to be allowed reversing that of the lower Forum.

IN the result, the appeals namely A.P. Nos. 162, 163, 164, 165, 166, 167, 168, 169, 170, 171 and 172/2000 are allowed and the orders of the District Consumer Disputes Redressal Forum, Trichy are hereby set aside. The complaints will stand dismissed. IN such circumstances of the case, we direct that the parties shall bear their own costs throughout. Appeals allowed.