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2003 DIGILAW 124 (UTT)

U. P. AVAS VIKAS PARISHAD v. PRAVESH SHARMA

2003-08-08

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2003
ORDER Mr. Justice K.D. Shahi, Chairman—These three appeals arise out of common judgment and order dated 12.11.2002 passed by District Forum, Udham Singh Nagar. Therefore, all the three appeals have been taken together for disposal. 2. The brief facts of the case are that the complainant Smt. Pravesh Sharma filed a complainat against Uttar Pradesh Avas Vikas Parishad, No. 2 Sahayak Abhiyanta, Kumaon Jal Sansthan and No. 3 Chairman, Nagar Palika, Kashipur for the grant of compensation for the construction of Nali and repair of road and also for mental harassment. 3. She has pruchased a house No. C-598. She has paid the instalments and became the owner of the house. On 27.12.1995 she got a map passed for construction of first floor and purchased materials for construction. But at the time of construction, the Reta, Bajri, Surkhi, Chunna from the walls started to come down and the floor went down by 2 or 3 inches. Several letters were written, but no action was taken. The material worth Rs. 4,000/- of the complainants was destroyed and stolen. The water supply in the house was not given and the opposite party No.1 told that for supply of water, the matter has been handed over to Kumaon Jal Sansthan. The complainant has deposited a sum of Rs. 502/- with the opposite party No. 1 before one year and 10 months. It is alleged that the PVC line for water supply is below 8 ft. It is leaking and there is no water supply. There is a big ditch like a tank in front of the house of the complainant, which is dangerous for the complainant. The complainant wrote several letters, but the ditch has not been repaired. There is 3 mtr. wide and 8 ft. deep ditch in front of the house of the complainant. The road and Nali of the house has damaged and it is difficult for the complainant to go on the road. It is alleged that in 1997 the opposite party No. 2 laid a new pipe line, but the ditch is still there. There is water in the walls and the painting, etc. has become useless. The opposite party No. 1 informed that the services has been transferred to Nagar Palika, Kashipur. The complainant spent Rs. 500/- in filling the ditch and also got the Nali repaired. 4. There is water in the walls and the painting, etc. has become useless. The opposite party No. 1 informed that the services has been transferred to Nagar Palika, Kashipur. The complainant spent Rs. 500/- in filling the ditch and also got the Nali repaired. 4. The opposite party No. 1 admitted the sale of house and alleged that after the construction and delivery of possession, the matter has been handed over to local bodies for supply of necessary amenities. The water is to be supplied by Kumaon Jal Sansthan and the roads are to be repaired by Nagar Palika. The complainant pays tax to Nagar Palika. The opposite party has charged nothing for that. It is alleged that possession has been handed over on 12.6.1991 to the complainant and the complaint has been filed on 8.4.1997 i.e. after 6 years and is barred by time. None appeared on bahalf of the respondent No. 2 and the case was heard ex parte against Kumaon Jal Sansthan. The Opposite Party No. 3, Nagar Palika, Kashipur alleged that they have nothing to do with the allegation of the complainant and the services have been transferred to them on 31.10.1996. The Nagar Palika is maintaining the road, etc. After hearing the learned Counsels for the parties, the learned Forum held that for the damages caused to the house of the complainant, the opposite Party Nos. 1 and 2 should pay a compensation of Rs. 11,600/- and all the opposite parties should pay a compensation of Rs. 5,000/- for mental harassment to the complainant. It was further directed that the road and Nali in front of the house of the complainant and walls of the complainant, after giving the foundation treatment, should be repaired within 2 months. 5. Being aggrieved by this order the Nagar Palika, Kashipur filed Appeal No. 344/2003 it was alleged that there is no privity of contract between the complainant and the Nagar Palika Parishad and if they are paid tax, they have to discharge their statutory duties. It was argued that payment of tax is no consideration and the Nagar Palika is not discharging any service for that. They referred the ruling reported in 2001 CPC 563. Maharana Pratap Nagar Hitkarni Samiti v. Nagar Palika Nigam, Bhopal. It was argued that payment of tax is no consideration and the Nagar Palika is not discharging any service for that. They referred the ruling reported in 2001 CPC 563. Maharana Pratap Nagar Hitkarni Samiti v. Nagar Palika Nigam, Bhopal. It was specifically held in this ruling that a person who gets amenities from Nagar Palika is not a consumer and if there is any deficiency in the giving of amenities that is not a deficiency in service and a case before the Consumer Forum is not entertainable. We agree with this argument. There is no privity of contract between the Nagar Palika, Kashipur and the complainant and if the tax is paid to Nagar Palika, that is not a consideration for any service. The appeal of Nagar Palika is to be allowed on that ground alone. 6. Kumaon Jal Sansthan also filed the Appeal No. 347/2002 and alleged that nothing has been paid to them and there is no privity of contract with them, however, it was conceded by the parties that new line has been laid down by the appellant and the complaint of the complainant against Kumaon Jal Sansthan is satisfied. In view of this, the complaint against Kumaon Jal Sansthan becomes meaningless and infructuous and is to be disposed of as such. 7. As regards the appeal of U.P. Avas Vikas Parishad against Smt. Pravesh Sharma registered as Appeal No. 114/2003, it is true that there may be below standard construction by the Avas Vikas Parishad for which these bodies are well-known but it is to be proved as a fact. No expert evidence whatsoever has been given in this regard. Nothing has been analysed by any expert to show that the cement, Surkhi, Ret, Chunna was below standard. No Commission was got issued that the foundation of the building has become week. Even otherwise merely by correspondence, the limitation is not at all extended. The possession was taken by the complainant in 1991, the complaint has been filed in 1997 and barred by time. It has been held in the ruling reported in 2002 (1) CPR 181 (NC), V. Muthukrishnan v. K. Ponnuswamy, where the complainant alleged deficiency in construction of flat. This complaint was filed in 1992 and the decision has been given in 1997 i.e. after 5 years and it was dismissed as barred by time. It has been held in the ruling reported in 2002 (1) CPR 181 (NC), V. Muthukrishnan v. K. Ponnuswamy, where the complainant alleged deficiency in construction of flat. This complaint was filed in 1992 and the decision has been given in 1997 i.e. after 5 years and it was dismissed as barred by time. Similar view was taken in 2002 (48) ALR 69, Pushpa Builders Flat Buyers’ Assn. v. Pushpa Builders Ltd., wherein possession of flat was delivered in 1995-96 and the complaint was filed in 2000. It was held to be barred by time. It was argued by the learned Counsel for the complainant that for inherent defects, the complainant can file the complaint only when it comes to his knowldege. Bajri, Chunna, Ret, cement, etc., are not inherent defects, it is apparent on the face of the building. The floor, if constructed properly and remains in fit condition for 4 or 5 years, after that, if there is any damage, the Avas Vikas Parishad cannot be held to be responsible. 8. Nobody can appreciate below standard construction, sinking of the floor and creation of a tank on the road by ditches. The welfare local bodies should look into the grievances, but the present complaint is barred by time and should have been dismissed for that. ORDER The appeal is allowed. The order dated 12.11.2002 passed by District Forum, Udham Singh Nagar is, hereby, quashed. The complaint is, hereby, dismissed. Cost of the complaint as well as this appeal shall be easy. A copy of the judgment shall be placed in the record of all the three appeals. Appeal allowed. ____