State Consumer Disputes Redressal Commission
H.P. Housing And Urban Development ... vs Shambhu Ram & Anr. on 2 September, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.345/2010. ORDERS RESERVED ON 8.8.2011 DATE OF DECISION: 2.9.2011. In the matter of: H.P. Housing and Urban Development Authority through its C.E.O. cum Secretary, Nigam Vihar, Shimla-171 002. Appellant. Versus 1. Shambhu Ram son of late Shri Thiru Ram, R/O A-270, Sector-2, New Shimla, Shimla. 2. Municipal Corporation, Shimla, through its Commissioner, Shimla. Respondents. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mr. Pawan Kaprate Advocate, For the respondent: Mr. Rajesh Kashyap, Advocate.
For respondent No.1 alongwith complainant in person.
Mr. H.S. Upadhaya, Advocate, For respondent No.2.
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O R D E R:
Chander Shekhar Sharma, Presiding Member.
1.
This appeal is directed against the order of the District Forum, Shimla, dated 27.7.2010 passed in Consumer Complaint No.40/2008, where by the complaint of the complainant was allowed and opposite party No.1 was directed to refund a sum of Rs.5,106/- to the complainant alongwith interest @ 9% per annum with effect from the date of filing of the complaint till actual payment is made and further direction was made to the effect that opposite party No.1 was to take appropriate steps for removing the cracks which had developed in the retaining wall and to make it crack free. Litigation cost was quantified at Rs.1500/-. Parties hereinafter are being referred to as per their status in the complaint.
2. Facts of the case as they emerge from the record are that the complainant had constructed a house on Plot No.A-270, Sector-II, New Shimla, which had been allotted to him on lease basis for 99 years by the then Shimla Development Authority, shortly known as SDA, and he was paying rent @ 2 % of the premium for the first 33 years of the lease.
Further averments in the complaint are that the retaining wall provided to the plot developed cracks and this fact was brought to the notice of the opposite party-SDA. Thereafter vide letter dated 27.3.2004, the matter was brought to the notice of the SDA who informed that since the area stands transferred to Municipal Corporation, Shimla with effect from 1.4.1998 for the purposes of external maintenance and now the area is with Special Area Development Authority, shortly known as SADA, as such he was advised to take up the matter with the opposite party No.2. Then, after the spot visit of the Executive engineer, it was informed that the retaining wall is part of development plot sold by the SDA, hence it is the responsibility of opposite party No.1 to reconstruct the same. Other allegations in the complaint are to the effect that the matter was taken up with the opposite party No.1 but they were of no avail and in order to take safety measures for the protection of the retaining wall, he had to spent a sum of Rs.5,106/- on repair of the said retaining wall and further estimate of Rs.14,325/- was submitted to the opposite party No.1 for sanction but the opposite parties are shifting their liabilities on each other and are avoiding the same. In this background, present complaint under Section 12 of the Consumer Protection Act, 1986 was filed against the opposite parties for deficiency of service on their part.
3. Opposite parties in the present case have resisted and contested the present complaint and opposite party No.1 in its written version to the complaint admitted that Type-A Plot No.270 in Sector-II, New Shimla was allotted to the complainant and possession thereof was handed over to him on 25.5.1998 and complainant is misrepresenting the facts as according to Annexure R.1, complainant has written that due to throwing of debris by Mr. Pankaj Malhotra, cracks have developed in retaining wall, hence damage was caused to his plot due to construction work of Shri Pankaj Malhotra and cracks were caused to the retaining wall was due to the drbris thrown by Mr. Pankaj Malhotra and opposite party No.2 in its separate reply had contended that the area of New Shimla has been merged in Municipal Corporation, Shimla and the responsibility of Municipal Corporation , Shimla stands only for maintenance and its reconstruction of the road and reconstruction of retaining wall is the concern of opposite party No.1 who is to solve the grievance of the complainant.
4. Brief resume of evidence led by the parties in the present case in nutshell is that the complainant in support of his case has filed his own affidavit and placed reliance upon Annexures C.1 to C.17. Opposite party o.1 in support of its case had placed reliance upon the version submitted by it which is duly verified by Mr. Ghanshayam Mishra, Superintending Engineers, HIMUDA and placed reliance upon Annexure R.1 which is a letter written by the complainant to Shri Pankaj Malhotra, dated 6.7.2001.
5. We have heard the learned Counsel for the parties and have gone through the record of the case minutely.
6. Mr. Pawan Kaprate, learned Counsel for the appellant argued that judgment of the Forum below is not legally sustainable since from the perusal of Annexure R.1, which is a letter addressed by the complainant to Shri Pankaj Malhotra, it is clearly evident that the debris is being thrown in his plot by Shri Pankaj Malhotra, as such damage to the retaining wall has been caused due to the throwing of debris by Shri Pankaj Malhotra and as such there is no deficiency of service on the part of the appellant. He also argued that since the cause of action had arisen to the complainant in the year 2001 and the complaint had been filed belatedly in the year 2008 on 18.2.2008, as such it is also barred by limitation. However, Annexures C.1 to C.12 reveals that the correspondence relating to developing of cracks was exchanged between the appellant and the complainant uptil 2007.
Mr. Rajesh Kashyap, learned Counsel for the respondent No.1 supported the order of the Forum below and Mr. H.S. Upadhaya, learned Counsel for respondent No.2 argued that reconstruction of retaining wall is not their responsibility since it is a part of developed plot sold by the S.D.A. In the present case we are not going into merits of the case since the awarded amount in the present case is petty one which comes to Rs.5,106/- and interest had also been awarded on this sum and the directions were given for taking appropriate steps for removing the cracks, as such we are not interfering with this order. However, it is made clear that this case will not be a precedent for other cases in future. Hence, the present appeal is dismissed. No order as costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Copy of this order be sent to the parties free of cost as per rules.\ Shimla, Announced on September 2, 2011. ( Chander Shekhar Sharma ) Presiding Member.
( Prem Chauhan ) Member