UTTAR PRADESH AVAS EVAM VIKAS PARISHAD vs HARI BHUSHAN GUPTA

THIS is an appeal against the judgment and order dated 7.12.1999 passed by District Consumer Forum, Bijnor, in Complaint Case No. 351 of 1994. Briefly stated the facts of the case are as follows.

THE complainant Hari Bhushan Gupta is the only son of his father Sri Satya Prakash Gupta and on the death of his father on 8.11.1993 being the only son he became the legal heir of his father. His father Satya Prakash Gupta was registered for an MIG House under the scheme of opposite party in Bijnor. On 6.7.1989 MIG House No. 113 was allotted to him. Half of the cost of the house was to be deposited in cash and the rest was to be paid in instalments. Since the financial position of his father was not sound he applied to the opposite party No. 2, the Housing Commissioner, to allow the mode of payment on instalments only rather than the payment of half of the cost of the house on cash basis. This application was given through the Estate Management Officer of the opposite party at Moradabad. THE opposite party, Estate Management Officer recommended his case for not charging any change fee. Subsequently, opposite party No. 2 allowed the house to be allotted on instalments without charging any change fees and no interest on the amount which was to be paid in cash was charged from the allottee. Accordingly, on 22.12.1989 a consolidated amount of Rs. 15,000/- was paid to the opposite party along with the first instalment of Rs. 1,800/-. THE rest amount was to be paid in instalments of 10 years with each instalment of Rs. 1,867/-. After completing all the formalities possession was given to the father of the complainant on 22.2.1990 but the allottee was directed to pay 50% of the cost of the house along with penal interest and change fee amounting to Rs. 15,000/-. On receipt of the possession of the house it was found that the floor of the house in question was not uniform and the lintel was leaking at various places. THE plaster of the wall had cracked and cement was used in a nominal quantity, welding of widow and door had given way. THE foundation given was not adequate and thus the house in question needed thorough repairs the estimated cost of which was assessed at Rs. 30,000/-. In addition the water tank had also got broken and a new water tank of Rs. 1,272/- was purchased. Since the roof of the house in question was also leaking, it requires an amount of Rs. 15,000/- for repairs. Cement pipes used were of very low quality and new pipe had to be installed on which an amount of Rs. 2,000/- was incurred. On the contrary the opposite party vide letter dated 25.1.1994 had shown an outstanding amount against the complainant of Rs. 44,820/- as arrears of instalments and further amount of Rs. 14,792.95 as arrear of interest. When details of this amount were asked for from the opposite party the same were not supplied to the complainant; THE road leading to the house was broken and there remains possibility of accident which is deficiency on the part of opposite party. THE complainant, therefore, lodged a claim before the District Forum for repairing of the house amounting to Rs. 30,000/-, expenditure incurred on water tank and pipe, etc. Rs. 3,270/-, Rs. 15,000/- as the amount for repair of the roof and refund of the amount of Rs. 6,471.30 which was deposited on 22.2.1990 under protest along with interest @ 18% per annum. It was also claimed that so long as the road is not repaired an amount of Rs. 100/- per day as damages and Rs. 2,000/ as cost of proceedings be also awarded. He also made a claim to the effect that the opposite party be restrained to recover further amount along with interest along with directive to the opposite party that the entire details of the payment may also be made available. In the written version before the Consumer Forum the stand of the opposite party was that the claim was based on wrong facts. The possession of the house was given to Satya Prakash Gupta who died on 8.11.1993 and so far transfer of his property has not been done in the name of any authorised person and, therefore, the complainant cannot be held to be owner of the house. It was on the request of Satya Prakash Gupta that mode of payment was changed and it was made clear that without payment of change fee possession cannot be given. The possession was given to Satya Prakash Gupta after his full satisfaction and the inventory was signed by him. After the possession was delivered it is responsibility of allottee to maintain the house and if defects develop thereafter after using the house then the responsibility does not lie on the opposite party. The house in question was got constructed through the qualified engineers of the opposite party and it appears that the house was not maintained properly by the complainant and his father. It is the responsibility of the complainant to ensure white-washing, painting of the house and also ensure clearance of sewer and drainage. The possession of the house was given in 1990 and the allottee died on 8.11.1993. During this period of 3 years no complaint was made by Satya Prakash Gupta, the allottee of the house. For default of payment of dues the allotment in question has been cancelled and it is the duty of the complainant to get the house mutated in his name as per rules of the Housing Board and deposit the outstanding amount.

The District Consumer Forum after hearing both the parties decreed the complaint for an amount of Rs. 30,480/- alongwith 11% interest from the date of filing of the complaint till the date of payment. The litigation charges of Rs. 500/- were also awarded to the complainant.

AGGRIEVED of the order of the District Consumer Forum the appellants have come in this appeal. In the memo of appeal it has been stated that the father of the complainant was allotted the house on 2.2.1990 and he continued in possession. It was not open for the complainant to raise any issue of deficiency at this belated stage. Once the complainant or his predecessor- in-interest had already inspected the house before giving his consent to include his name in the draw of lot, he cannot raise any grievance with respect to the condition of the house. The complainant or his predecessor-in-interest did not deposit the entire amount within the prescribed time and, therefore, the complainant is required to pay interest on the delayed payment as per rules of the Housing Board. The possession of the house in question was given to the allottee on 22.2.1990 and all the inventories of the stock and property were properly acknowledged by the original allottee after he had properly inspected the house allotted to him. The allegation regarding the deficiency in the house were made in 1993. We have heard the arguments of learned Counsel of both the parties. The learned Counsel for the appellant has argued that the possession of the house in question was given in February, 1990. The possession was enjoyed by the complainant for four years and the complaint was made after four years. No deficiency was pointed out at the time of taking over the possession. In respect of the house in question outstanding dues in respect of instalments and interest, etc. are still pending and the same have not been cleared by the complainant who has not been able to mutate his name against the property. It was also argued that the District Consumer Forum has based its findings on the Inspection Report of Architect and the opposite party was not at all associated in the inspection. On the other hand the learned Counsel for the respondent has argued that the report of the Architect in regard to deficiency in the house was not rebutted by the opposite party before the District Forum nor any affidavit in support of the allegations made in the written statement was filed by the opposite party. It was a matter of latent defects found in the constructions of the house after four years.

WE have gone through the record placed in the appeal file including the papers which were filed before the District Consumer Forum. It appears that the District Consumer Forum has based its findings on the inspection report of M/s. Tyagi & Associates, Civil Engineer at Bijnor. A perusal of this report reveals that the opposite party-Housing Board was not informed of the inspection. The Engineer had made same comments in his report about the roads and drains and as far as roads and drains are concerned they are situated in the colony and are used by every allottee of the colony. In regard to the MIG house in question the report reveals that house needs immediate repairs to avoid any accident. The maintenance and repairs of this house have been suggested by the engineer in his report. The items included are floor of the house, slab, plaster on walls, doors and windows, lime terracing over roof, rain water pipe, electric wiring and water tank, etc. The complaint was filed in the year 1994 and the report of the engineer is of June, 1998. The house in question was allotted in 1990. The defects pointed out in the report are such that they mostly relate to the maintenance aspect of the house. It is also clear from the papers on record that at the time of taking over possession no objection whatsoever was raised by the complainant in regard to the defects in the house. The learned Counsel for the respondent has drawn our attention towards the judgment and order passed by the National Commission reported in I (1998) CPJ 96 (NC). In this case it has been held by the National Commission that the opposite party is liable for defects which were not patent at the time of taking possession and the complainant was entitled for compensation. In this case the complainant was allotted a flat which remained vacant and on taking over possession the complainant noticed hair thin crack in the wall and the mosaic floor had sunk to an extent of 1" to 3". The complainant reported these defects to the opposite party Tamil Nadu Housing Board and the Executive Engineer of the -opposite party after inspecting the noticed defects in construction in various flats particularly the complainant''s flat and promised to rectify the defects. In the case in hand the defects were not reported at the time of taking over the possession. These defects were alleged to have been reported only after the 4 years of taking over possession and at that time the complainant was in default of large payment to opposite party. In that case before the National Commission, the Tamil Nadu Housing Board had admitted the defects after inspection but in the instant case the Housing Board of Uttar Pradesh was not in picture and the report was prepared by complainant''s engineer M/s. Tyagi & Associates. No representative of the Housing Board was associated or consulted. No evidence to the effect that the Housing Board was informed of any defect till 1993 has been produced before the District Consumer Forum. In the circumstances the District Forum has erred in placing reliance on the report of the engineer in which the Housing Board was neither associated nor consulted. Moreover, the allottee Satya Parkash Gupta had not made any complaint of the defects for more than 3 years and after his death when his son who is complainant occupied the house in question and has run into huge arrears which were to be paid to the Housing Board, a complaint about the defects, etc. was made. In view of the above we find the complaint seems to have been made in order to circumvent the payment of the outstanding dues including the dues deposited by the complainant under protest to put a pressure on the Housing Board to seek refund. The judgment and order passed by District Consumer Forum is thus liable to be set aside and the complaint is liable to be dismissed. ORDER The appeal is allowed and the judgment and order of District Consumer Forum, Bijnor, are set aside. The complaint is dismissed. Let copy as per rules be made available to the parties. Appeal allowed.