CHANDIGARH HOUSING BOARD vs BHARAT BHUSHAN

THIS revision is directed against the order dated 16.8.2004 of Consumer Disputes Redressal Commission, Union Territory, Chandigarh allowing appeal against the order dated 16.12.2003 of a District Forum whereby complaint filed by respondent/complainant was dismissed.

VIDE allotment letter dated 28.8.1991 the respondent was allotted House No. 1756/1 (MIG-III Category) in Sector 39B, Chandigarh by the petitioner-opposite party and possession thereof handed over on 13.10.1991. Respondent alleging leaking of water in his house from House No. 1756/2 above his house, approached the petitioner for removal of leakage by sending letter dated 16.4.1992 and reminders dated 22.1.1997, 3.12.1997, 3.3.1998 and 9.6.1998. On leakage not being removed the respondent alleging deficiency in service filed a complaint claiming certain reliefs against the petitioner which was contested by the petitioner by filing written version. Though allotment of said house to the respondent and complaints having been received from him for removing leakage, were not disputed but it was alleged that house was allotted on "as is where is basis" and after taking possession the Board was not liable to attend to any complaint in the house. It was further alleged that leakage, if any, was owing to the material impairment and alterations carried out by the respondent in allotted house. Complaint was stated to be barred by limitation. To be only noted that on allowing appeal the petitioner was directed to remove leakage in the house of respondent within two months and to pay amount of Rs. 50,000 as compensation for physical harassment caused due to deficiency in service on the part of petitioner by the State Commission. We have heard Mrs. Rachna Joshi Issar for petitioner as also the respondent.

Main thrust of argument advanced by Mrs. Issar is that house was allotted and possession thereof handed over on "as is where is basis" by the petitioner. In its order the District Forum recorded the finding that allottee of House No. 1756/2 which is above the house of respondent, had carried out certain alterations in his bathroom due to which leakage of water was caused in the house of complainant and this part of finding was not disturbed by the State Commission. According to the learned Counsel, there cannot be any deficiency in service on part of petitioner if the leakage in the house of respondent was caused due to alterations made in bathroom by the allottee of upper floor and the house to respondent being allotted on "as is where is basis". In support of later limb of contention our attention was invited to Clause 5(ii) of the allotment letter (copy at pp. 44 to 48). During the course of argument or enquiry the respondent has not denied the allottee of upper floor having made alterations in his bathroom from where water has been leaking. In our view, if the leakage of water in the house of respondent was due to the reason not attributable to petitioner Board and allotment having been made on "as is where is basis" the petitioner cannot be held deficient in service in not removing the leakage in question. Order of State Commission holding otherwise, thus, cannot be legally sustained and deserves to be set aside under Section 21(b) of the Consumer Protection Act, 1986.

ACCORDINGLY, while allowing revision, aforesaid order dated 16.8.2004 is set aside and complaint dismissed. No order as to cost. Revision Petition allowed.