By Dr Ajay Kummar Pandey, Advocate, Supreme Court
In the wake of a recent deadly collapse of a portion of a high rise residential building in Gurgaon , a fatal wall collapse in a four-storey residential building in Vasant Kunj and a building constructed by a public sector construction company, declared totally unsafe and unfit for living, the spotlight has once again turned to the issue of home buyers’ rights.
Legal Remedies Available to Homebuyers
The first and foremost remedy, which is available to home buyers is under Articles 226 and 227 for violation of Article 21 Right to Life, granted under the Constitution of India. To seek relief under this, the residents will have to approach the High Court.
The residents can contend that there is a fear of life due to the instance of collapse of the building. Hence, the court must appoint an independent building inspection agency for conducting building structural and compliance checks.
Apart from this, they can also sue the builder for damages and also demand compensation from the government for authorizing such projects, as well as seek alternative housing. In a similar case, in Laxmi Nagar, Delhi, where a building was declared unsafe for habitation, alternative accommodation was provided to property owners, before demolishing the building.
Be it the case of NBCC building declared unsafe, or the Vasant Kunj residential floors or the case of a collapse of a portion of high rise Chintel Paradiso building in Gurgaon and any other similar case, both the laws of torts, i.e., of negligence and strict liability provide suitable remedy to home buyers.
Negligent Torts, is a wrongful act caused by the negligence of another person/group of persons. Here, both builder and municipal authorities, seem to be negligent toward their duty, hence negligent tort can be brought against them. Both seem to have failed to behave with the level of care which a person with an ordinary prudence would have done, causing loss of both body and property, making them liable under this law of tort.
It is also a fit case of torts under strict liability, in which a person is considered to be liable irrespective of his intention to commit the wrong-doing. This is of such strict nature, that even courts deem it fit to rule out the need for proving intention. Usually, under this not only the producer/manufacturer are held liable but all those involved in the process of production/supply chain/construction etc are considered to be liable until it is established who was indeed at fault. Thus, it is a fit case of filing a tort against the local municipal corporation which gave its assent to the project and cases where homebuyers’ rights have been violated due to negligence on the part of the builders.
It goes without saying, that these remedies are available In addition to filing a criminal complaint at the nearest police station against the builder.
The residents can also invoke the writ jurisdiction or the inherent powers of a High Court. They also have the option to approach the Supreme Court of India by filing a public interest litigation under Article 32 of the Constitution of India.
In the filing of a PIL, the residents can claim that the collapse of the structure has occurred due to negligence on the part of builders which is an issue in the common interest of all residents and thereby needs adjudication from the Supreme Court upon such gross violation of rights.
Interestingly, ‘building collapse’ is not defined as an offence under law in India. However, in various cases the court(s) have held person(s) responsible for not performing their part of due diligence.
Loopholes in Building Bye Laws
It has been noticed that in order to earn quick buck, builders often violate building bye-laws to allow for more coverage to increase the selling price. Most clients are either unaware of this or turn a blind eye to it for immediate monetary and space benefit. Ignoring Delhi Bye-laws or Haryana Bye-Laws, is clearly the case of compromising with safety of the inhabitants and the city, both.
Violation of Bye Laws
The common cases of violations of Bye-Laws are
One must understand that the bye-laws are not unreasonable. The recent revisions in the Delhi bye-laws have allowed bathrooms on stilt and terrace levels to meet utility needs.
A good design is always the better solution, it will ensure the best utilization of your available space, minimizing negative spaces like long corridors and poorly lit rooms. Thus, violations of bye-laws definitely put the occupants of the building at risk and also create many other problems too.
So, next time, when you are buying a house, apart from considering location, amenities and price, you must take into account its structural designs, sanctioned plan and the track record of the builder and last but not the least, the Completion Certificate.