DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)ISBT KASHMERE GATE DELHI

CC/18/2020

No. DF/ Central/

Smt. Madhubala,

W/o Late Shri Kishan Chand,

R/o C – 222, Budh Vihar,

Inderpuri, Delhi

…..COMPLAINANT    

VERSUS

Delhi Urban Shelter Improvement Board,

Through its Chief Executive Officer (CEO),

Housing Branch, Govt. of NCT of Delhi

Vikas Kuteer, I.P. Estate, New Delhi

             …..OPPOSITE PARTY

Coram  :   Ms. Rekha Rani, President

                 Mrs. Manju Bala Sharma, Member

                 Shri R.C. Meena, Member

ORDER

Rekha Rani, President

1. Smt. Madhubala, (in short the complainant) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 as amended up to date (in short the Act) pleading therein that her husband was allotted flat no. 61-D (Third Floor/Top Floor),  Block 16, Sarai Kale Khan – II, New Delhi – 110013 by the Slum & JJ Department, MCD (in short OP) in 1995.  Allotment/possession letter dated 16.05.1996 was issued to her husband.   Her husband passed away on 24.03.2004.

She requested OP to hand over possession of the allotted flat to her.When OP did

not do so she filed a writ petition no. 586/2019 before Hon’ble Delhi High Court.  Ultimately possession of the said flat was handed over to her.  When she took possession of the flat on 09.07.2019 she found that the flat was in an absolutely dilapidated condition, floor of the house was broken at several places, lintel on roof was also coming out, doors were broken, windows were completely damaged,  electricity wires were hanging out from one side of the flat etc.

Complainant has prayed for direction to OP to pay her a sum of Rs. 20 Lacs for causing harassment on account of expense incurred by her on carrying out basic renovation/repairs. 

3.       The case is at admission stage.

5.          It is vehemently pleaded in the instant complaint, that the subject flat was in dilapidated condition at the time when complainant took possession of the same from OP on 09/07/2019,

6.    Order of Hon’ble Delhi High Court dated 16.12.2019 in WP (C ) No. 11988/2019 reads that pursuant to its order dated 15/11/2019 respondent (OP herein) carried out an inspection of the flat and submitted status report.   It was observed that :

‘‘On perusal of the same, it is found that the Prayer ‘A’ made in the petition cannot be granted as the flat in question does not appear to be in dilapidated condition as was contended in the petition.Learned Counsel for the petitioner, however, submits that there are still certain repairs that are to be done and even the repairs shown in the photographs annexed with the Status Report have been carried out by the petitioner herself.It that be the case, the petitioner has to file an appropriate proceeding as this would involve a disputed question of facts which cannot be ascertained from the present petition in exercise of power under Article 226 of the

Constitution of India. 

          Hon’ble High Court had observed that the flat in question was not in a dilapidated condition as alleged by the complainant.  Complainant’s case is that she carried out repairs during pendency of the writ petition. 

7.       Complainant took possession of the flat on 09.07.2019.  She did not register any protest or objection at that time.  There is no any document on record which may indicate that she took possession of the flat under any protest. 

It is pleaded that in the complaint that she brought to notice of the concerned Executive Engineer that the house was in dilapidated condition.   No date is given as to when condition of the house was brought to the notice of Executive Engineer.   (Name of the Ex. Engineer is also not mentioned.)   This is an oral statement.  There is no written communication from her to OP regarding bad condition of the house from the date of taking possession i.e. 09.07.2019 to the date of giving legal notice dated 13.09.2019. 

Same issue was examined by National Commission in T.K.A. Padmanabhan v. Abhiyan CGHS Ltd. 2016 (2) CPJ 273 and it was held as follows:

33.     "10. It is an admitted fact that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the Consumer Complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got possession. There is nothing on record to show that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When

petitioner had taken the possession of the flat on 27.02.2004, unconditionally and without any protest, thereafter he ceased to be a consumer. The agreement executed between the parties comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the Consumer Complaint on the face of it is not maintainable.

34. Similarly, in Revision Petition No.3338 of 2007 (Harpal Arya v. Housing Board Haryana, Estate Manager, Housing Board, Sector 6, Panchkula) decided on 04.01.2016, the Hon'ble National Commission held in Para-15 as under:

"15. Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate, it is clear that petitioner had taken the possession without any pre-conditions. Now, after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition. Once petitioner had taken the possession with open eyes

and without any pre-conditions, he cease to be a consumer. The Consumer Complaint was filed on 25.05.2005, that is, after about seven months of taking over of possession of the house. Therefore,  on the face of it, the petitioner was not a 'consumer' at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone."

8.       In view of the aforesaid judgements complainant after taking possession of the flat unconditionally without raising any protest or objection at that time in writing, ceases to be a consumer.  As such the complaint is not maintainable before Consumer Forum.  

Announced this 28^th day of Feb. 2020.