Chandigarh

StateCommission

A/190/2015

Ansal Lotus Melange Projects Pvt.Ltd. - Complainant(s)

Versus

Abhilash Kukana - Opp.Party(s)

Gaurav Chopra,Adv.

16 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

First Appeal No.189 of 2015

(Against the order dated 29.05.2015 in CC/590/2013 of District Forum-II, U.T., Chandigarh)

 

Date of Institution	:	12.08.2015
Date of Decision	:	16.09.2015

 

Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh through its Authorized Signatory.

 ……Appellant/Opposite Party.

Versus

 

1. Hitender Singh
2. Ravi Inder Singh

Both residents of H.No.190, HIG Flat, Urban Estate, Phase-I, Jalandhar.

 

…..Respondents/Complainants.

 

 

 

 

 

 

First Appeal No.190 of 2015

(Against the order dated 29.05.2015 in CC/589/2014 of District Forum-II, U.T., Chandigarh)

 

Date of Institution	:	12.08.2015
Date of Decision	:	16.09.2015

 

Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh through its Authorized Signatory.

 ……Appellant/Opposite Party.

Versus

 

1. Abhilash Kukana
2. Mrs. Poonam Kukana

Both residents of House No.458, Lila Chowk, Purani Abadi, Sriganganagar, Rajasthan.

 

…..Respondents/Complainants.

 

First Appeal No.191 of 2015

(Against the order dated 29.05.2015 in CC/537/2013 of District Forum-II, U.T., Chandigarh)

 

Date of Institution	:	12.08.2015
Date of Decision	:	16.09.2015

 

Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh through its Authorized Signatory.

 ……Appellant/Opposite Party.

Versus

 

Niraj Kumar Sharma S/o Sh. T. D. Sharma r/o H.No.E-206, Ivory Towers, Sector 70, Mohali.

…..Respondent/Complainant.

 

 

First Appeal No.192 of 2015

(Against the order dated 29.05.2015 in CC/538/2013 of District Forum-II, U.T., Chandigarh)

 

Date of Institution	:	12.08.2015
Date of Decision	:	16.09.2015

 

Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh through its Authorized Signatory.

 ……Appellant/Opposite Party.

Versus

 

1. Sachin Sharma S/o Late Sh. Hans Raj Sharma
2. Ms. Rimple Sharma w/o Sachin Sharma

Both residents of Flat No.22, Second Floor, Palm Grove, Sector 115, Mohali.

…..Respondents/Complainants.

 

First Appeal No.193 of 2015

(Against the order dated 29.05.2015 in CC/103/2014 of District Forum-II, U.T., Chandigarh)

 

Date of Institution	:	12.08.2015
Date of Decision	:	16.09.2015

 

Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh through its Authorized Signatory.

 ……Appellant/Opposite Party.

Versus

1. Hari Parkash S/o Late Sh. Babu Ram
2. Ms. Namrata w/o Hari Parkash

Both residents of Flat No.19, Second Floor, Palm Grove, Sector 115, Mohali.

…..Respondents/Complainants.

 

 

Appeals under Section 15 of the Consumer Protection Act, 1986.

 

 

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

 

Argued by: 

 

Sh. Gaurav Chopra, Advocate for the appellant.

Sh. Rajinder Singh Raj, Advocate for the respondent(s).

 

PER DEV RAJ, MEMBER.

              This order shall dispose of above mentioned five appeals bearing Nos.189 to 193 all of 2015 filed by the Opposite Party – Ansal Lotus Melange Projects Pvt. Ltd. (now appellant) against the orders dated 29.05.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be referred as District Forum), vide which, it partly allowed the consumer complaints, and directed the Opposite Party to recalculate the amount of super area by treating the same to be 1611/1348 Sq. ft. instead of 1678/1657/1372 Sq. Ft and refund the excess amount charged from the complainant(s), besides awarding compensation of Rs.50,000/- and Rs.10,000/- as litigation expenses, in each case.

2.           Since, facts of all five cases are similar and common question of law is involved, thus, these appeals are being disposed of by this common order.

3.           Case of M/s. Ansal Lotus Melange Projects Pvt. Ltd. Vs. Sh. Abhilash Kukana & Another, F.A. No.190/2015 (Complaint Case No.589/2014) is taken as the lead case.

4.           The facts, in brief, are that in reference to advertisement (Annexure C-1) of the Opposite Party published in various newspapers relating to construction of residential apartments in the proposed Palm Grove Luxury Apartment, with assured possession within 24 months, the complainants namely Sh. Abhilash Kukana and Mrs. Poonam Kukana applied for an apartment in the project known as ‘Palm Grove’ situated on the Kharar – Landra Road, Mohali. Accordingly, they purchased allotted Flat No.2, First Floor, Tower 2, Palm Grove, in Sector 115, having super built-up area of 1525 Sq. Ft. at the rate of Rs.2098.36 per Sq. ft., total amounting to Rs.32,00,000/-, which was originally allotted vide allotment letter dated 10.07.2009 (Annexure C-2) to Mr. Jagmohan Singh Bhogal and Mrs. Kamaljit Kaur. However, the Opposite Party failed to complete the construction work in time and despite various visits, letters and emails sent by the complainants, no response was forthcoming. Finally, possession of the flat, in question, was handed over by the Opposite Party on 15.11.2012. At the same time, the Opposite Party intimated the complainants that the area of the flat has been increased to 1678 Sq. ft. from 1525 Sq. ft., for which, an additional amount of Rs.3,51,649/- was demanded. In addition to this, the Opposite Party illegally charged Rs.60,000/- and Rs.25,000/- on account of open car parking and interest free maintenance and security deposit. Besides, the Opposite Party did not execute the sale deed in favour of the complainants. Possession of the apartment, in question, was handed over without proper infrastructure, the area was without proper roads and lifts. It was stated that there was no sufficient parking place, quality of construction was sub-standard and even the promised amenities like club, tennis court, badminton and basketball grounds, swimming pool, jogging track etc. were not provided.  The Opposite Party was demanding maintenance charges @Rs.2/- per sq. ft. in favour of M/s Star Facilities Management Ltd., a sister concern. The complainants served a legal notice dated 30.09.2013 upon the Opposite Party, but to no avail. 

5.           It was further stated that the act and conduct of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed, claiming various reliefs.

6.            Opposite Party, in its written statement, stated that since all the payments were made and the possession had been taken by the complainants, after duly satisfying themselves, they were estopped from filing the present complaint.  It was stated that Clause 10 of the allotment agreement contemplated that possession was likely to be completed within 24 months and no definite period was mentioned. It was also stated that the allotment letter was the agreement entered between the parties and its terms and conditions were binding upon the parties. It was further stated that complainants purchased the flat in resale from original allottees on 15.11.2012. It was further stated         that possession had been offered vide letter dated    18.05.2012 (Annexure R-3).  It was further stated that as per clauses 8 & 9 of the allotment letter, the Opposite Party was entitled to charge the amount for the increased area and there was no illegality to that extent. It was further stated that as per clause 8 and 9, the complainants had given their unconditional consent to any variation and modification in the area. It was further stated that car parking charges in the sum of Rs.60,000/- and interest free security deposit were payable and nothing was charged by the Opposite Party which was beyond the terms and conditions of the allotment agreement. Copy of M. B. Sheet was annexed as Annexure R-4. The complainants took actual physical possession after making the due payment without any protest or demur after complete satisfaction regarding quality. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.           The parties led evidence, in support of their case.

8.           After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, vide the impugned order, as stated above.

9.           Feeling aggrieved, the Opposite Party has filed the instant appeals.

10.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

11.         The Counsel for the appellant/Opposite Party submitted that the respondents/complainants had accepted the terms and conditions of the allotment letter without any demur or protest and they could not rake up the controversy after a period of almost four years with regard to increase in the super area, which was justified. He further submitted that the report submitted by the Local Commissioner appointed by the District Forum was silent as to how he assessed the super built-up area. He further submitted that the appellant/Opposite Party calculated the entire super area of the independent floor and sought payment of additional amount for the enhanced area correctly. He further submitted that the calculation of the super area of the independent floor had been done in accordance with the Notifications dated 14.09.2006, 04.04.2011 issued by Ministry of Environment and Forests and letter dated 2.4.2012 issued by the Government of India, Ministry of Environment & Forests. He further submitted that the objections were submitted by the appellant/Opposite Party against the report of the Local Commissioner and since the said report was vague and incomplete, the same was liable to be discarded and instead, the summary of area, produced on record by the appellant/Opposite Party alongwith measurement books, were to be considered but the District Forum erroneously returned the finding in favour of respondents/complainants. He further submitted that compensation of Rs.50,000/- awarded by the District Forum on account of alleged mental agony and harassment was not justified. He further submitted that the impugned order passed by the District Forum was based on presumption and surmises and the same being self-contradictory was liable to be set aside being unsustainable in the eyes of law.

12.         The Counsel for the respondents/complainants submitted that the respondents/complainants were allotted Apartment No.2 on 1^ST Floor in Block Tower 2, having super built-up area of approximately 141.69 Sq. Mtr. (1525 Sq. ft.) @Rs.2098.36 per Sq. ft. for a total consideration of Rs.32,00,000/-. He further submitted that the appellant/Opposite Party arbitrarily enhanced the area     from 1525 Sq. ft. to 1678 Sq. ft. He further submitted       that the report submitted by the Local Commissioner appointed by the District Forum was correct. He           further submitted that the Local Commissioner while submitting his report, though did not agree with the    proposed enhanced area entirely but as per his report, he assessed the area as 1611 Sq. ft. as against original tentative area of 1525 Sq.ft. and enhanced area of 1678 Sq. ft. He further submitted that the order of the District Forum was just and correct and the same was liable to be upheld.

13.        It is evident that at the time of allotment of the apartment, in question, to the respondents/complainants, the tentative super area of the said apartment was 141.69 sq. mts. = 1525 sq. ft., which was increased to 1678 Sq. ft. vide letter dated 15.11.2012 (Annexure C-3). To adjudicate the issue, as to whether, increase in the area was justified or not, the District Forum asked appellant/Opposite Party as well as the respondents/complainants to suggest the names of panel of persons, out of which, Local Commissioner could be appointed. Both the parties submitted names for appointment of Local Commissioner but since there was no consensus, the District Forum asked the Director/Principal, Chandigarh College of Architecture, Sector 12, U.T., Chandigarh, to appoint a member of its faculty, duly qualified, as Local Commissioner, for measurement of actual and super built-up area of the flat of the complainants. The report of Local Commissioner, so appointed, was received vide letter dated 30.10.2014 (Page 74 of District Forum file). As per report, the super built up area was mentioned as 1611 Sq. ft. approximately.

14.         The first question, which falls for consideration, is, as to whether the appellant/Opposite Party could enhance the area. The answer to this question is, undoubtedly, in the affirmative. Clause 9 of the allotment letter, being relevant, is extracted hereunder:-

“9.   THAT the Company shall, under normal conditions, complete the construction of “Palm Grove” as per the said plans and specifications seen and accepted by the Apartment Allottee with such additions, deletions, alterations, modifications in the layout, building plans, change in number, dimensions, height, size, area or change of entire scheme, the Company may consider necessary or may be required by any competent authority to be made in them or any of them. To implement all or any of these changes, supplementary allotment letter, if necessary will be executed by the company. If as a result of the above alteration etc., there is either reduction or increase in the super area of the said premises or its location, no claim, monetary or otherwise will be raised or accepted except that the original agreed rate per sq. mt./sq.ft. and other charges will be applicable for the changed area i.e. at the same rate at which the apartment was registered/booked or as the company may decide and as a consequence of such reduction or increase in the super area, the company shall be liable to refund without interest only the extra basic price and other pro rata charges recovered or shall be entitled to recover the additional basic price and other proportionate charges without interest as the case may be. If for any reason the company is not in a position to allot the property applied for, the company, at its sole discretion, shall consider for any alternative property or refund the amount deposited with simple interest @10% per annum.”

15.         Perusal of the afore-extracted clause clearly reveals that the Opposite Party was to complete construction of “Palm Grove” where the apartment, in question, was allotted, as per the plans and specifications seen and accepted by the complainants, which were subject to additions, deletions, alterations, modifications in the layout, building plans, change in number, dimensions, height, size, area or change of entire scheme. It further stipulated that if as a result of the above alteration etc., there was either reduction or increase in the super area of the said premises or its location, no claim, monetary or otherwise was to be raised or accepted except that the original agreed rate per sq. mt./sq.ft. and other charges were to be charged for the changed area at the same rate at which the apartment, in question, was registered/booked. In view of provisions of this clause, in our considered opinion, the appellant/Opposite Party could enhance the super built-up area and raise demand for such enhancement at the original agreed rate.

16.         The next question, which falls for consideration, is, as to whether the super built-up area of the apartment, in question, enhanced by the appellant/Opposite Party was correct or not. As stated above, the tentative/approximate area of the apartment, in question, was 1525 Sq. ft. but the appellant/Opposite Party while offering possession of the flat, in question, vide letter dated 15.11.2012 (Annexure C-3), intimated that the super built-up area of the flat, in question, was increased to 1678 Sq. ft. The respondents/complainants took possession of the apartment and made payment of Rs.3,51,649/- on account of enhanced area. To decide the controversy, it is necessary to refer to definition of super built-up area as provided in the allotment letter, Notifications dated 14.09.2006, 04.04.2011 issued by Ministry of Environment and Forests and letter dated 2.4.2012 issued by the Government of India, Ministry of Environment & Forests and Summary of areas of independent floors (Annexure R-3) brought in evidence by the appellant/Opposite Party.

17.         The definition of ‘super built-up area’ as envisaged in Clause 2 of the allotment letter (Annexure C-2), interalia, is extracted hereunder:-

“2. That the rates charged above for the area of the Apartment is correctly known as ‘Super Area’ i.e., the covered area plus walls, plus proportionate share of areas under staircases, common areas, corridors/passages, walls, lifts, shafts, machine rooms and mumties, Air Handling Unit Room on floors, Fire Control Security Room etc. The inclusion of the common areas in the computation of super area shall not give any right, title or interest therein as such to the Apartment Allottee, except as provided hereunder……”

18.         In Notification dated 14.09.2006, the ‘built up area for covered construction’, in the case of facilities open to the sky, under Column 5, at Page 18 of the said Notification, is stated as under:-

“….it will be the activity area….”

19.         In Notification dated 04.04.2011, the term ‘built up area’, as defined in Notification dated 14.09.2006 under Column 5, has further been clarified as under:-

“(iii) against item 8 (a), -

In column (5), for the entry, the following entry shall be substituted, namely:-

‘The built up area for the purpose of this Notification is defined as “the built up or covered area on all the floors put together including basement(s) and other service areas, which are proposed in the building/construction projects”.”

20.         Further vide letter dated 2.4.2012, Government of India, Ministry of Environment & Forests, in the light of the recommendations of the EAC (Building Construction, CRZ, Infrastructure Development & Misc. projects), made following clarifications:-

“(i)   The built up area as per the amendment dated 4^th April, 2011 to the EIA Notification is, “the built-up or covered area on all the floors put together including basement(s) and other service areas, which are proposed in the building/construction project”.

(ii)   Area which is not covered or any area which is open to sky/cut out/duct should not be counted in the calculations of built up areas. The open to sky and the cut out/ducts are required for proper light and ventilation of a building.

(iii)  Atrium i.e. open portion of a building which is not covered at intermediate floor levels but covered at the top level like any shopping malls or hotels can be taken into account for calculation of the built up area but it should not be calculated for each floor.”

21.         As per definition of “super built up area” in Clause 2 of the allotment letter (Annexure C-2), built up area included the covered area plus walls, plus proportionate share of areas under staircases, common areas, corridors/passages, walls, lifts, shafts, machine rooms and mumties, Air Handling Unit Room on floors, Fire Control Security Room etc. and as per Notifications dated 14.09.2006, 04.04.2011 issued by Ministry of Environment and Forests and clarification vide letter dated 2.4.2012 issued by the Government of India, Ministry of Environment & Forests, built-up area or covered area on all the floors put together included basement(s) and other service areas.

22.         Prof. Dharmendra Kumar, Assistant Professor, Chandigarh College of Architecture who was appointed as Local Commissioner by the District Forum, submitted his report dated 30.10.2014 (Page 74 of record below), operative part whereof is extracted hereunder:-

       “It is hereby intimated to the Hon’ble Court that there is no architectural terminology as SUPER BUILT-UP AREA. Even as per IS3861 : 2002, there is no such nomenclature available for computing the measurement of the same. However for practical/commercial purposes developers have coined this terminology which may include common areas, vertical circulation, pergola, mumty and lift machine room, balconies, projection of cupboards and over head water tank.

       According to the undersigned, the following areas were computed for your reference and necessary action:-

1. Carpet area: 986 sq. ft. (approx)

2. Super built-up area: 1611 sq. ft. (approx)”

Thus, against the original tentative area (1525 Sq. ft.) of the apartment as per the allotment letter and the enhanced area of 1678 Sq. ft. vide letter dated 15.11.2012, the super built-up area assessed by the Local Commissioner was 1611 Sq. ft., meaning thereby that the Local Commissioner agreed that there has been increase in the super built-up area from the original tentative area.

23.         The appellant/Opposite Party did not associate during the course of inspection by the Local Commissioner. In objections filed by the appellant/Opposite Party before the District Forum, it was stated that the Local Commissioner did not inform the Company official on reaching the flat; report was presumptive as no details of area measured were given, report presented was incorrect as even MB Books provided with the reply were not referred. The appellant/Opposite Party placed, on record, of District Forum, summary of super built up area duly measured and certified by Sh. Anil Tyagi, Architect as Annexure O-2. The District Forum did not rely upon the report (Annexure O-2) for the reasons given in Para 19 of its order, which reads as under:-

“19.        As far as the contention of the OP that the report filed by the Local Commissioner is merely presumptive because no detail of area measured has been given and there is no summary of measures of area etc. is concerned, it is significant that the report Annexure O-2 prepared by the architect of the OP, is not supported even by the affidavit of Mr.Anil Tyagi, Architect of the OP.  Consequently, no reliance can be placed on the report produced by the OP. We do not find any reason to disbelieve the report prepared by Prof. Dharmendra Kumar, Architect, Local Commissioner. The objections against the report of the Local Commissioner are also not verified. The OP has also not produced the affidavit of any of its engineers about the authenticity of the super area calculated by it. The OP has also not produced the copies of the alleged occupation certificate and completion certificate of the unit issued by the competent authorities after due verification of the site measurement books, building plans etc.  We are of the opinion that the report of Prof. Dharmendra Kumar, Architect, Local Commissioner is based on sound reasons and actual measurements and there is no reason to disbelieve that the super area of the apartment of the complainant was found to be 1611 sq. ft. instead of 1678 sq. ft. calculated by the architect of the OP.  In this view of the matter, the demand of the OP for an amount of Rs.3,51,649/- representing the super area as 1678 sq. ft. is illegal.  Since the complainants have already made the payment of Rs.3,51,649/-, the OP is required to re-calculate the amount after treating the super area to be 1611 sq. ft. instead of 1678 sq. ft. and refund the excess amount charged from the complainants.”

24.         The appellant/Opposite Party brought in evidence Summary of super area by Shri Anil Tyagi, Architect in respect of flat, in question, under various heads  (Annexure O-2) (Page 79 of record below), which is extracted hereunder:-

SUMMARY
SUPER AREA FLAT NO.2 (FIRST FLOOR)
1.	Area of flat.	111.979
2.	Area of Balconies/Sitout & Sunshades.	15.392
3.	Common Area of lift well proportionally added to flat	0.212
4.	Common Area of staircase lobby at third floor proportionally added to flat.	8.744
5.	Common Area of staircase lobby at terrace level proportionally added to flat.	2.915
6.	Common Area of machine room proportionally added to flat.	3.390
7.	Common Area of pergola proportionally added to flat.	1.861
8.	Common Area of elevation features proportionally added to flat.	1.850
9.	Common area of water tank proportionally added to flat.	2.787
10.	External Services (UG Tank, Sub. Station, Pump Room, STP, Exhaust Shaft, Generator Fuel Shaft, Guard Room, Meter Room)	4.850
	SUPER AREA	153.980
		1657.441

 

Thus, by placing on record Annexure O-2, appellant/Opposite Party itself admitted that area of flat, in question, was 1657.441 Sq. ft. and not 1678 Sq. ft. as indicated in its letter dated 15.11.2012 (Annexure C-3).

25.         No doubt, super built-up area as per report submitted by the Local Commissioner, was 1611 Sq. ft. as against the initial super built up area of 1525 Sq. ft., revised to 1678 Sq. ft., and 1657 Sq. ft. as per aforesaid report, but apparently, neither any break-up nor any details were given by the Local Commissioner, as to how he computed the area of the flat, in question. At the same time, Architect of the appellant in the summary has also not given any details except the bifurcation of super built up area under different heads. Thus, in order to arrive at some reasonable, just and correct assessment of the super built up area, on the basis of documents and evidence on record, we have co-related the Company Architect summary details of area with summary of areas of independent floors, Mohali (Punjab), Block 2 (Annexure R-4) even though the same are not signed by an official of the appellant/Opposite Party. The appellant/Opposite Party took a specific objection that M.B. Books provided with the reply were not referred. By co-relating summary of area (Annexure O-2) given by Sh. Anil Tyagi, Architect of the appellant/Opposite Party with the summary of area (Annexure R-4) (Pages 43 to 53 of District Forum file), following position emerges:-

26.         Page 43 is the caption “Summary of Area, Independent Floors, Mohali (Punjab), Block-2). Page 44 contains details of Block-wise total sale area in Sq. ft. and Sq. Mt. and the sale area of 1^st Floor in Block/Tower 2 is shown as 1657.44 Sq. ft. and 153.98 Sq. Mtr. Page 45 gives Block-wise built up area, Balcony & Sunshade area, Typical Floor, Terrace Floor, Water Tank, Mumty & Machine Room, Architectural features, Pergola. Page 46 is not relevant as the same is in respect of Blocks 17 to 32. Page 47 gives block-wise saleable area in Sq. Ft. and Sq. Mtr. Page 48 has drawings of different blocks. Page 49 pertains to Balcony & Sunshade Built up area (15.392 Sq. Mtrs) which is same as indicated at Page 45. At Page 50, details of common area of typical floor and staircase lobby at Terrance Level are given. At page 51, Machine Room, Water tank, pergola and elevation features area have been given, which were also indicated at Page 45. At Page 52, is front lawn and rear lawn area which is not relevant, apartment being on 1^st Floor. Page 53 contains summary of total Flat area, Balcony & Sunshade area, Front & Rear Lawns, sale area (Co-efficient) and saleable area in Sq. Mtr. and Sq. ft. for eight units.

27.         In Annexure R-4 (Page 43 to 53), no details/ dimensions/break-up of 0.212 Sq. Mtr. Common area of Lift Well proportionally added to flat and 4.850 Sq. Mtr. for External Services (UG Tank, Sub. Station, Pump Room, STP, Exhaust Shaft, Generator Fuel Shaft, Guard Room, Meter Room) included in Summary (Annexure O-2) by Sh. Anil Tyagi, Architect, have been given.

28.         In our considered opinion, break-up and details of the same were necessary but the appellant/Opposite Party has failed to produce the same. Except these 2 items, rest of the areas mentioned in Annexure O-2 are as per details/break-up in Annexure R-4. Therefore, in the absence of any cogent evidence qua these two components, from the total area of 153.980 Sq. Mtr, area of 0.212 + 4.850 Sq. Mtr. = 5.062 Sq. Mtr. has to be deducted and cannot be taken into account in the enhanced area and, by doing so, area for which the appellant/Opposite Party is entitled to charge the price, shall work out to 148.918 Sq. Mtr = 148.918 x 10.763 = 1603 Sq. ft.

29.         Since the District Forum on the basis of Local Commissioner’s Report has held that the appellant/Opposite Party was entitled to price for 1611 Sq. ft. instead of 1678 Sq. ft., (In Annexure O-2, appellant/Opposite Party admitted the area as 1657 Sq. ft.), the respondents/complainants have been rightly held to be entitled to refund of excess amount charged by the appellant/Opposite Party beyond 1611 Sq. ft.

30.         In view of the position aforesaid, the order of the District Forum does not warrant any interference and, as such, the appeals bearing No.189, 190, 192 and 193 all of 2015 are liable to be dismissed.

31.         In First Appeal No.191 of 2015, appellant/Opposite Party has submitted summary of super area (Annexure O-2) (Page 82) signed by Sh. Anil Tyagi, Architect, which is extracted hereunder: -

SUMMARY
SUPER AREA (Flat No.403, Fourth Floor, Tower-7)
Area of Flat	94.867 Sq. M
Area of Balconies & Sunshades	9.06 Sq. M
Total Area	103.927 Sq. M
Common area Co-efficient 22.61%	23.50 Sq.M
SUPER AREA	127.43 Sq.M
	1371.656 Sq. Ft.

 

 

 

32.         The common area co-efficient 22.61% to the extent of 23.50 Sq. Mtr has been added. No break-up or else details, whatsoever, as to how the common area to the extent of 23.50 Sq. Mtr. has been calculated, have been given/explained. The flat, in question, is on the 4th floor. Even perusal of built up area and circulation area of Towers 2 to 11 (at Page 38), Annexure R-3, reveals that circulation area in respect of Tower No.07 for Ground Floor is 79.03 Sq. Mtr. and for Floor 1 to 7, the same is 328.517 Sq. Mtr. Thus, per floor circulation area comes to 328.517 ÷ 7 = 46.930 Sq. Mtr., which is less than the ground floor flat. There is even variation in circulation area of a L. Pent House and U. Pent House. The Local Commissioner, namely, Prof. Manoj Kumar, Assistant Professor, Chandigarh College of Architecture, Sector 12, Chandigarh, appointed by the District Forum, has assessed the area as 1348 Sq. ft. (approx.) as against the tentative area of 1292 Sq. ft. given in the allotment letter and enhanced to 1371 Sq. ft. vide letter dated 24.03.2012 (Annexure R-2) and produced in evidence by the appellant/Opposite Party vide Annexure O-2. Since no cogent evidence in support of averment that the area was 1371.656 Sq. Ft, has been brought, the order passed by the District Forum does not warrant interference of this Commission and, in our considered opinion, area of 1348 Sq. ft. can be said to be correct.

33.         However, considering the substantive relief granted to the respondent/complainant for refund of amount      against the enhanced area of 24 Sq. ft. @Rs.2,450/- per Sq. ft., the compensation of Rs.50,000/- granted by the District Forum, is apparently on the higher side. In our considered opinion and in the facts and circumstances of the case, compensation in the sum of Rs.25,000/- would be just and reasonable. To this extent, the impugned order dated 29.05.2015 passed by the District Forum, in Consumer Complaint No.537 of 2013 needs modification.

34.         No other point, was urged, by the Counsel for the parties.

35.         For the reasons recorded above, the appeals bearing No.189, 190, 192 and 193 all of 2015, are dismissed, with no order as to cost and the orders impugned are upheld.  

36.         However, the appeal bearing No.191 of 2015 titled ‘Ansal Lotus Melange Projects Pvt. Ltd. Vs. Niraj Kumar Sharma’ is partly accepted, with no order as to cost. The impugned order is modified to the extent that the amount of compensation awarded by the District Forum to the tune of Rs.50,000/- is reduced to Rs.25,000/-.

37.         Certified copy of this order be placed in First Appeals bearing Nos.189, 191, 192 and 193 all of 2015.

38.         Certified Copies of this order be sent to the parties, free of charge.

39.         The file be consigned to Record Room, after completion.

Pronounced.

September  16, 2015.

Sd/-      

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

Ad