PUSHPA PATHANIA vs RAJASTHAN HOUSING BOARD, KOTA

THE facts leading to this Revision Petition filed by the Complainant Smt. Pushpa Pathania are that she had applied for a house to the Rajasthan Housing Board, Kota in 1979. She was allotted MIG Group-B house. She took possession of the house on 6.4.1987. Before taking possession she had told the officers of the Rajasthan Housing Board that the house was incomplete and not fit for living. She was assured by the then site Engineer that the remaining work of the house would be completed within a month or two. On that assurance she had taken the possession. She further found that the floor of two rooms was hollow and broken at some places and water seeped in. Other defects were also found in the house. According to her the cost of getting the defects removed would be amount Rs. 40,000/ -. The District, Forum, Kota after considering the complaint filed by the Petitioner and the reply of the other party and taking evidence in the shape of affidavits held that there were defects in the house. The District Forum accepted the complaint and directed the Opposite Party to get the shortcomings and defects noted in the order removed within three months or in default to pay Rs. 40,000/- to the Complainant who would herself get the defects and shortcomings removed. Rs. 2500/-were awarded as damages.

THE Opposite Party i.e. The Rajasthan Housing Board filed an appeal before the State Commission. The State Commission held: "The only question is whether a direction for doing of a positive act can be given which in the case on hand has been given by the District Forum. Under Sec. 14(1) of the Act, such a relief is not contemplated. It may be stated that Sec. 14(l)(a) to (c) deal with the goods and (d) is with respect to compensation. Under Section 2(l)(b) the Complainant can only be granted the reliefs mentioned in Sec. 14(1) of the Act and the reliefs which the District Forum has granted are not the reliefs enumerated therein. The first question which has been formulated here-in-above is, therefore, answered against the Complainant respondent and in favour of the Opposite Party-appellant."

Under question No. 2 formulated by it the State Commission held that the Complainant was estopped from alleging that there was deficiency and defects in the house as at the time of taking possession she had given declaration in the following words : "I have inspected the said house and found it complete in all respects."

THE State Commission accordingly accepted the appeal and dismissed the complaint. The Complainant has now come before us by way of this Revision Petition.

WE are of the opinion that in the present case the question of estoppel does not arise. While taking possession the Complainant could not have found the defects and deficiency in the house. The defects in the house might not be immediately visible at the time of her inspection. Only when one lives in a house only then he can find out the defects and deficiency in it. Therefore, the finding of the State Commission under question No. 2 is to be set aside. The other finding of the State Commission is also to be set-aside. The Consumer Protection Act, 1986 was amended in 1993 and clause (e) has been introduced in Section 14(1) of the Act. That clause reads: ''to remove the defects or deficiencies in the services in question". Therefore, the Rajasthan Housing Board can be asked to remove the defects and deficiencies in the house allotted to the petitioner herein. It is not in dispute that the Respondent herein is rendering service by constructing houses and allotting to, the applicants. The Supreme Court in Lucknow Development Authority v. M.K. Gupta, Civil appeal No. 6237 of 1990=III (1993) CPJ 7 (SC) has held: "Therefore, if such authority undertakes to construct buildings or allot houses or building sites to citizens of the State either as amenity or as benefit then it amounts to rendering of service and will be covered in the expression '' service made available to potential users''. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression ''service of any description''."

Hence in view of the said amendment the relief asked for by the Complainant-Petitioner can now be granted by a Forum constituted under the Consumer Protection Act. The State Commission has not considered the question if the defect or deficiencies alleged by the Complainant do exist in the house allotted to the Complainant. Hence we have no other alternative but to accept the present Revision Petition and remand the case to the State Commission for fresh decision in the light of the above observations. In the circumstances of the case we leave the parties to bear their own costs.