First Appeal No. 2008/544
(Arising from the order dated 23.04.2009 passed by District Forum(West) Janak Puri, New Delhi, in Complaint Case No.365/05/804/04)
Ms. Sulekha Bajaj, Appellant/Complainant
A-3/29D, Green Apartments, through Sh. Deepak Bajaj
Paschim Vihar, Authorised Representative
DDA, Chief Engineer ... Respondent/OP
West Zone Through through Ms. Girija Wadhwa,
Vice Chairman, advocate
DDA, Vikas Sadan, I.N.A.
Justice Barkat Ali Zaidi ... President
Sh. M.L. Sahni Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice Barkat Ali Zaidi, President(ORAL)
1. The complainant is an allottee of OP DDAs flat No.A-3/29D 6A, Green Apartments, Paschim Vihar, New Delhi. He has challenged in the complaint the seepage of water in the roof top because of poor material used in construction of it and the improper maintenance of water tank of two adjacent flats bearing No.29-A of Sh. L.R. Rastogi and 29-C of Smt. Sharda. The complainant therefore wants that directions be issued to the respondent DDA to undertake the repairs for the damage caused in the roof top of the flat. The claim was opposed by the OP DDA by filing written reply before the District Forum, and th District Forum dismissed the complaint vide order dated 23.04.2009.
2. That is what brings the complainant in appeal here.
3. We have heard Sh. Deepak Bajaj. Representative of the appellant and Ms. Girija Wadhwa, Counsel for the OP DDA.
4. The two adjacent flat owners Sh. R.L. Rastogi and Smt. Sharda from whose water tanks the seepage has been alleged, have not been impleaded, and this is one of the objection of the OP DDA. The OP DDA has further denied the allegation of use of sub-standard material in the flat and has alleged that the complaint has been filed after 18 years and the complainant has himself admitted that the damage was due to seepage from the overhead water tank of flat No.29-A and 29-C. The OP DDA has further said that, the terms and conditions on which the flat was given were that the transferee had taken the flat as it is, and he was not entitled to raise objections.
5. In the first place it has to be stated that the complainant has himself mentioned in his complaint that the seepage was due to improper maintenance of water tank by the two adjacent flat owners and as such DDA is not primarily responsible for the seepage. If the water tanks had not been properly maintained by the adjacent flat owners, then it is their fault and not of the OP DDA, and the OP DDA cannot be held responsible for the fault of other flat owners. Complainant has not impleaded other two flat owners from whose water tanks the seepage has been alleged, and it cannot in the circumstance be found out, as to what was cause of the seepage. We have also to take into account, that such problem has been brought forth after 18 years, and there is element of decay in building which is natural process.
6. However, we must clarify, that the argument of the OP DDA that the flat owner is not allowed to raise issue for any damage due to sub-standard material being used in the construction of the flat is untenable and unacceptable, because the purchaser purchased the flat in good faith, and believing that proper material has been used. If poor material has been used in the construction of the flat, and the flat collapses, it will not be open to the OP DDA to plead, that the purchaser should have satisfied himself about the quality of the material used in the construction of the flat. That is neither possible nor the purchaser is supposed to do that, and that will be wholly against the principle of honest and fair play, which the Commission cannot support.
7. With these observations the appeal is dismissed.
8. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
9. Announced on the 13th day of November 2009.