K.K. Srivastava, President:
1. The complainant Shri Bharat Bhushan resident of House No. 156/1, Sector 39-B, Chandigarh feeling aggrieved by the judgment and order dated 16.12.2003 passed in Complaint Case No. 589 of 2000 by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter referred to as the District Forum] has now filed this appeal, which has been contested by the respondent-Chandigarh Housing Board (for short hereinafter referred to as CHB) who is represented by Mr. Pardeep Bedi, Advocate. The record of the complaint case was summoned.
2. We have heard Shri Bharat Bhushan, appellant in person and Mr. Pardeep Bedi, Advocate for the respondent-CHB and have perused the impugned judgment and order and the record of the complaint case.
3. Undoubtedly, the appellant was allotted house No. 1756/1 (MIG-III Category) in Sector 39-B, Chandigarh by the respondent-CHB vide allotment letter dated 28.8.1991 and possession was handed over on 13.10.1991. It is alleged that on 16.4.1992, the appellant approached the respondent praying that proper arrangement be made for removal of the defect of leakage into the house allotted to the appellant. The leakage was coming from house No. 1756/2 of the same MIG-III Category. The matter was taken up on subsequent occasions vide reminders sent on 22.1.1997, 3.12.1997, 3.3.1998 and 9.6.1998. The S.D.E., Public Health of CHB also wrote a letter to Shri Moti Ram Banga of house No. 1756/2, Sector 39-B, Chandigarh for allowing the staff to enter his house on 27.5.1998 at 10.10. a.m. to rectify the leakage. The complainant also wrote a letter addressed to the Advisor of the Administration of U.T., Chandigarh pointing out specifically about the aforesaid leakage coming from the bathroom of house No. 1756/2 and prayed for its removal. Representations were also made on 15.2.2000, 19.5.2000 and 5.7.2000 but with no response from the respondent-CHB. The dirty water was flowing in the bathroom and main entrance of the house of the appellant causing damage to the household items and clothes. It also made the floor of the bathroom slippery causing the family members to slip.
4. Alleging deficiency in service on the part of the respondent-CHB, the complaint was filed seeking issuance of direction to the respondent - CHB for removing the leakage and praying compensation of a sum of Rs. 5 lacs for mental and physical harassment caused to the appellant/complainant.
5. Upon issuance of notice of the complaint to the respondent - CHB, the respondent filed written statement wherein it was contended that at the time of the delivery of possession, there was an agreement entered into, which clearly mentioned that the CHB shall not entertain any claim for addition, alteration or any complaint whatsoever regarding the condition of the flat, its design, quality of material used and workmanship, etc. and submitted that this clause in the agreement prevented the appellant from filing the complaint case regarding the defect of leakage into his house. The possession was handed over of the said flat on âAs is where is basisâ. The respondent-CHB issued a Show-cause Notice dated 20.6.2000 on the ground that the appellant/complainant had raised illegal construction in contravention of terms and conditions of allotment and building bye-laws by constructing a room at the terrace of the building. A reply was filed by the appellant to the Showcause Notice, which was considered and found untenable. It resulted in the cancellation of the allotment of flat and intimation was sent to the complainant vide letter dated 24.10.2000. The leakage was attributed to the owner of dwelling unit No. 1756/2, which was owing to the material impairment and alterations carried out by the allottee of the said dwelling unit and the respondent - CHB was not liable to remove the leakage and, consequently, the respondent-CHB is not liable to pay any compensation.
6. The District Forum referred to Condition No. 4 of the agreement and extracted the same in the impugned judgment and order and further referred to the letter of possession quoting therefrom the relevant portion, which was as follows :
âIt is stated that I have taken over the possession of House No. 1756/1, together with fittings, fixtures and glass panes complete in all respects to my entire satisfaction. There is no defect/incompletion in the said dwelling unit.â
7. The District Forum thus held that the complainant could not make any complaint regarding the dwelling unit allotted to him and of which he got possession. Apart from it, it was held that the complaint was to be filed within two years from the date when cause of action arose. The District Forum dismissed the complaint.
8. The complainant who is the appellant before us referred to his averments regarding the leakage in his house coming from the house No. 1756/2 and also showed to us the photographs of the portion of his flat, which got damaged due to leakage. There are three photographs, which as per the submission of the appellant/complainant are of his flat. This fact has not been disputed by the respondent -CHB. The appellant also referred to the affidavit of Shri Y.P. Batra, Section Officer, CHB, which is dated 11.1.2003. This affidavit comprises two paragraphs. In the first para, it has been deposed that Shri Y.P. Batra visited House No. 1756/2, Sector 39-B, Chandigarh on 23.10.2003 and the house was found locked. In the second para, he referred to his second visit on 27.10.2003 and deposed about his observations as under:
âIt was observed that the dampness in H. No. 1756/1, Sector 39-B, Chandigarh was due to the non-maintenance of W.C. and bath of H. No. 1756/2, Sector 39-B, Chandigarh by the occupant of the said dwelling unit and certain additions and alterations had also been made in the bath by the allottee of H. No. 1756/2, Sector 39-B, Chandigarh.â
9. This affidavit supports the case of the appellant/complainant that the dampness in House No. 1756/1 was apparently due to the non-maintenance of W.C. and bath of House No. 1756/2, Sector 39-B, Chandigarh by the occupant of the said dwelling unit and certain additions and alterations had also been made in the bath by the allottee of House No. 1756/2, Sector 39-B, Chandigarh. The photocopy of the agreement has also been placed on record. Condition No. 4 of the agreement lays down inter alia that the hirer took the house on âas is where isâ basis with full and definite knowledge of the nature and conditions of the construction and the accommodation and amenities provided in the dwelling unit and, therefore, he shall not make any complaint or objection whatsoever, regarding property circumstances and claim and damage or compensation on that account or on account of any injury or loss that may be caused by fire, accident, theft or from any other cause, whatsoever.
10. This condition No. 4 is in restraint of the legal rights accruing to the appellant/complainant and any agreement, which has the effect of a restrain on the exercise of the legal right is against the provisions of Section 28 of the Contract Act. Section 28 of the Indian Contract Act, inter alia, provides âEvery agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary Tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.â Exception (1) saves contract to refer to arbitration dispute that may arise and provided for suits barred by such contracts and saves contract to refer questions that have already arisen .
11. Before these exceptions, which do not apply in the instant case, a clause aforesaid, which prohibits the complainant from instituting any action against the CHB seeking redressal of his grievances regarding leakage from the bathroom of House No. 1756/2 to the premises of 1756/1 of the appellant, would be void to that extent under Section 28 of the Indian Contract Act. The respondent-CHB cannot take shelter under Condition No. 4 and escape liability for the damage caused to the accommodation of the appellant/complainant due to the poor quality of construction, which caused the leakage from the bathroom of House No. 1756/2 to the premises of 1756/1 of the appellant.
12. The Honble Supreme Court of India in the case of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=1986-94 National Commission and SC on Consumer Cases 278 (NS), observed in para 5 that â.... In fact the Act requires provider of service to be more objective and care taking. It is still more in public service......â. It was further observed â...A Government or semi-Government body or a local authority is as much amenable to the Act as any other private body rendering similar service. ......â. In para 6, the Honble Apex Court observed, inter alia, as under:
â........Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder of contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer..â
13. In view of the law laid down by the Honble Supreme court in the case of Lucknow Development Authority (supra), the respondent-CHB, statutory authority being provider of the service is required to be more objective and care taking. The respondent-CHB in the instant case constructed a house for the benefit of a common man and rendered statutory service. The said service is alleged to be defective and in the instant case, the own employee of the respondent-CHB Shri Y.P. Batra, Section Officer has in his affidavit admitted about the defect causing leakage in the house of the appellant, would amount to denial of comfort and service to the appellant, a consumer
14. The Honble National Consumer Disputes Redressal Commission, New Delhi [for short hereinafter referred to as the National Commission] in the case of Ghaziabad Development Authority v. Gurudutt Pandey, being Revision Petition No. 152 of 2000, which was filed from order dated 13.10.1999 passed in Appeal No. 1558/SC/97 of the State Commission, Uttar Pradesh has held that it is only when possession is taken and consumer starts living then he would know the deficiencies particularly those which are latent in the construction of the house. The Honble National Commission further observed that it is dangerous proposition to content that right of consumer gets wiped out on his taking possession of the house. Any condition mentioned in the document witnessing the delivery of possession would not debar the complainant from bringing to the notice of the provider of the service i.e., the respondent-CHB and pray for the removal of the same.
15. The District Forum, in our considered opinion, was in error in holding that the complainant could not lay grievance due to the aforesaid Condition No. 4 of the agreement and the document witnessing delivery of possession. It also committed an error in holding that the complaint was barred by limitation. The appellant/complainant had been pursuing the matter with the respondent-CHB and sent reminder up to 9.6.1998 but received no response from the respondent-CHB. The appellant has proved that there was deficiency in service on the part of the respondent-CHB.
16. Resultantly, the complaint is allowed to the extent that the respondent-CHB shall remove the defect of leakage in the dwelling Unit No. 1756/1, Sector 39-B, Chandigarh allotted and occupied by the appellant within two months from the date of receipt of certified copy of this order. The complainant is awarded a sum of Rs. 50,000/- as compensation for physical harassment and mental agony caused due to deficiency in service on the part of the respondent-CHB. This amount of compensation shall be paid to the appellant/complainant by the respondent-CHB within the aforesaid period of two months failing which the amount of compensation shall carry interest @ 6% per annum till payment. A sum of Rs. 1,000/- is awarded as costs of litigation.
Copies of this order be sent to the parties free of charge.