Rajasthan

StateCommission

A/869/2015

Rajasthan Housing Board Through Commissioner - Complainant(s)

Versus

Kamlesh Sharma S/o Sh. Ramavtar Sharma - Opp.Party(s)

Ratneh Yadav

07 Apr 2016

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

FIRST APPEAL NO: 869 /2015

 

Rajasthan Housing Board through Commissioner, Head office Jyoti Nagar, Jaipur & ors.

Vs.

Kamlesh Sharma s/o Ramavtar Sharma r/o B 315 Murlipura Scheme,Jaipur.

 

FIRST APPEAL NO: 1037/2015

 

Kamlesh Sharma s/o Ramavtar Sharma r/o B 315 Murlipura Scheme,Jaipur.

Vs.

Rajasthan Housing Board through Commissioner, Head office Jyoti Nagar, Jaipur & ors.

 

Date of Order 7.4.2016

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mr. Kailash Soyal -Member

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Mr. Shiv Vyas counsel for the Housing Board

Mr.J.P.Sharma counsel for the complainant Kamlesh Sharma

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

These two appeals have been filed against the judgment passed by the District Forum,Jaipur 4^th dated 25.6.2015 whereby the amount of Rs. 2,93,000/- has been awarded to the complainant alongwith interest and compensation and cost of proceedings. Both these appeals are decided by this common order.

 

The facts of the case are tht the complainant booked a house with the Housing Board and he deposited the cost of the house. On 3.3.2014 he has been given possession of the house. On 13.3.2014 a notice was served on the Housing Board with the contention that house is inhabitable having many defects. There were cracks in the walls, colour and primer was not proper, tiles were hollow and construction was not of quality which was replied by the Housing Board but inspite of this no defects have been cured by the Housing Board hence, compensation was awarded by the Forum below.

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The contention of the appellant is that while taking the possession nothing has been objected and declaration has been signed by the complainant that house is complete in all respect. Hence, he is now estoped for raising any objection and further the Forum has relied upon the report of the private surveyor who was interested towards the complainant and further more the survey report was filed on the day of argument hence, could not be rebutted and the judgment of the Forum below suffers from infirmity.

 

Per contra the contention of the complainant is that immediately he has pointed out the defects in the house and as per Anx.11 dated 16.4.2014 the Housing Board has asserted that they have removed the defects but admittedly that has not been done. Photographs clearly shows the bad condition of the house. The surveyor is a licensed surveyor from the Nagar Nigam and no objection has been raised at the time of argument hence, the Forum below has rightly relied upon the survey report. There is no infirmity in the impugned judgment and appeal of the Housing Board should be dismissed. It has also been further contended by the complainant that he has to live in a rented house and the Forum below has not awarded

 

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any compensation and in lieu of rent and the amount of compensation be enhanced suitably.

 

Heard the counsel for the parties and perused the impugned judgment as well as the original record of the case.

 

Facts are not in dispute that the possession of the flat has been handed over to the complainant on 3.3.2014 and only after ten days i.e. on 13.3.2014 a detailed notice was served on the Housing Board stating all the defects found in the flat which has not been denied by the Housing Board in their reply Anx.11 rather they have admitted the fact that there were defects in the flat and now they are all cured but photographs of the house clearly reveals that house was not inhabitable and there were patent and latent defects in the house. The complainant has rightly relied upon the decision of the Supreme Court in Civil Appeal No. 6237/1990 ; Lucknow Development Authority Vs. M.K.Gupta decided on 5.11.1993 where the apex court has held that consumer redressal agency can award compensation for harassment and agony for the services rendered by housing construction activities. Further reliance has been placed on 1997 (2) CPR 299 (NC) Prof.R.Shanmugasundaram Vs. Tamilnadu Housing Board where defects were occurred in

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floor subsequent to the use of flat and National Commission has held that these are latent defects and compensation should have been allowed. Further reliance has been placed on 1997 (1) CPR 6 Kailash Malpani Vs. Kishore Kumar Khatri. Here in the present case as per Anx.11 it was the admitted case on the part of the Housing Board that there were defects in the flat at the time of handing over the possession and contention of the appellant Housing Board is that they were cured but there was no evidence to this effect that the defects were ever cured hence, the Forum below has rightly arrived at the conclusion that house with latent and patent defects were handed over to the complinant.

 

The other contention of the Housing Board is that the report of private surveyor should not have been relied and it was submitted on the day of arguments and reliance has been placed on 2015 NCJ 780 (NC) New India Assurance Co. Vs. Avinash Sharma where the National Commission has held that in absence of any sound evidence report of private surveyor cannot be relied upon. The contention of the Housing Board is the surveyor has inspected the house on 2.5.2015 after two years of allotment of the house and natural tear and wear would be occasioned and survey

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report should not be relied. It has also been contended that the surveyor is not an authorized person to inspect and inspection was not made in presence of the representative of the Housing Board. The contention raised by the appellant are not sustainable as there was no need to inspect the flat in presence of representative of the Housing Board and further apart from the survey report from Anx.11 reply to the notice and photographs presented are sufficient to show that there were defects in the flat which has not been cured inspite of several reminders and surveyor has estimated the claim on DSR rates. He is an licensed surveyor of Nagar Nigam hence, the genuineness of the survey report cannot be doubted. It is true that it has been submitted at the time of final argument but on that day the Housing Board has not objected for the presentation of the same and otherwise also no objections as regard to survey report were raised before the Forum below.

 

In view of the above there is no merit in the appeal of the Housing Board and liable to be rejected.

 

The complainant has filed the appeal with the contention that he has to pay Rs. 5000/- per month as rent as the house was not inhabitable. Be that may be the case but there is no

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evidence on record to show that the complainant is living in a rented house or he is paying Rs.5000/- as rent. Hence, the Forum below has rightly not awarded any compensation for the same and there is no substance in this appeal and liable to be rejected.

 

Both appeals are meritless and stand dismissed.

 

(Kailash Soyal) (Nisha Gupta )

Member President

 

 

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