Chandigarh

StateCommission

A/114/2015

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

Versus

Dr. Rajiv Vashisht - Opp.Party(s)

Gaurav Chopra,Adv.

02 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	114 of 2015
Date of Institution	:	29.05.2015
Date of Decision	:	02.06.2015

 

M/s Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh, through its  Authorised Representative.

……Appellant/Opposite Party.

Versus

Dr. Rajiv Vashisht, resident of H.No.3210, TBRL Society, Sector 51-D, Chandigarh.

                     ....Respondent/Complainant.

 

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

 

BEFORE:   SH. DEV RAJ, PRESIDING MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by: Sh. Gaurav Chopra, Advocate for the appellant.

                  

PER DEV RAJ, PRESIDING MEMBER

            This appeal is directed against the order dated 16.04.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly allowed the complaint filed by the complainant (now respondent) and directed the Opposite Party (now appellant) as under:-

“26. For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  The OP is directed as under :-

i)      To recalculate the amount of super area by treating the same to be 1587.291 Sq. ft. instead of 1657.441 sq. ft. and refund the excess amount charged from the complainant.

ii)     To pay an amount of Rs.50,000/- as compensation to the complainant on account of mental agony and harassment caused and deficiency in service and unfair trade practice  on the part of the OP.

iii)    To also pay an amount of Rs.10,000/- towards litigation expenses to the complainant.

27.  This order be complied with by the OP within one month from the date of receipt of its certified copy failing which it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above with interest @ 9% from the date of filing of the present complaint till realization.”

2.         The facts, in brief, are that the Opposite Party advertised in various newspapers (Annexure C-1) about the construction of residential apartments in the proposed Palm Grove Luxury Apartments with assured possession within 24 months. It was stated that complainant applied for an apartment in the proposed group housing and he was allotted Flat No.10 on the top floor, Tower No.10, Sector 115, Mohali having a super built-up area of 1525 sq. ft. @ Rs.1951.00 per sq. ft. total amounting to Rs.29,75,000/-. It was further stated that the Opposite Party failed to complete the construction in time despite various visits, letters and emails sent by him.  It was further stated that vide letter dated 18.5.2012, the Opposite Party informed the complainant that due to revision in area calculation, the super built up area of the flat was 1657 sq. ft. It was further stated that the Opposite Party finally handed over the possession to the complainant on 27.11.2012 vide letter dated 29.10.2012.  It was further stated that demand of Rs.2,57,532/- apart from Rs.7,958/- as tax was demanded from the complainant for the alleged enhanced area of 132 sq. ft., which was paid by him in good faith. It was further stated that, in addition, the Opposite Party also illegally charged a sum of Rs.60,000/- as open car parking charges and Rs.25,000/- as interest free maintenance and security deposit.

3.         It was further stated that the Opposite Party was also not executing the sale deed in his favour.  It was further stated that the possession of the flat had been handed over to him without proper infrastructure; the area was without proper roads and without lifts; there was no sufficient parking place and that the quality of construction was sub-standard. It was further stated that even the promised amenities like club, tennis court, badminton and basket ball grounds, swimming pool, jogging track etc. were not provided.  It was further stated that the Opposite Party was also demanding maintenance charges @Rs.2/- per sq. ft. in favour of M/s Star Facilities Management Ltd., a sister concern. It was further stated that the complainant served a legal notice dated 30.9.2013 upon the Opposite Party, but to no avail. 

4.         It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant 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, seeking directions to the Opposite Party, to refund an amount of Rs.2,65,490/- charged on account of enhanced super built-up area; Rs.60,000/- charged for open car parking; Rs.25,000/- as interest free security alongwith interest @18% per annum from the date of payment till actual realization;     withdraw the condition of charging maintenance charges @Rs.2/- per sq. ft.; charge reasonable amount as prevalent in other similar projects; pay Rs.1,00,000/- as compensation for mental agony and physical harassment besides litigation costs.  

5.           Opposite Party, in its written version, took up certain preliminary objections to the effect that the complainant was not a consumer as he had purchased the unit in resale from one Paramjeet Singh; that disputed questions of fact and law were involved in the present case which could not be decided in summary proceedings; that the complainant had no locus standi to file the present complaint; that since all the payments were made and the possession was taken by the complainant, after duly satisfying himself, as such he was estopped from filing the present complaint. 

6.         On merits, it was stated that the Opposite Party did not advertise the construction of residential apartments in Pal Grove, as alleged. It was stated that perusal of Annexure C-1 clearly showed that advertisement was by Monga Realtors and not by the Opposite Party. It was further stated that clause 10 of the allotment agreement contemplated that possession was likely to be completed within 24 to 30 months and no definite period was mentioned. It was further stated that the allotment agreement was the agreement entered between the parties and its terms and conditions were binding upon the parties. It was further stated that it was no where said in the entire allotment agreement (Annexure R-3) that possession was to be completed within 24 to 30 months time. It was further stated that the complainant deliberately did not annex allotment agreement in this case. It was further stated that possession had been offered to the complainant on 19.3.2012 and there was a minor delay of 6 months in offering possession which could occur in construction.  It was further stated that as per clauses 8 & 9 of the allotment letter, the complainant had given his consent to any variation, addition, alteration, deletion and modification in the plans, designs and specifications shown to him. It was further stated that the plan shown to the allottee were tentative and variation could be made in it. It was further stated that as per these clauses, the complainant had given his unconditional consent to any variation and modification. It was further stated that if as a result of the alteration etc., there was either reduction or increase in the super area of the said premises or its location, no claim, monetary or otherwise would be raised or accepted except that the original agreed rate per sq. mt./sq/.ft. It was further stated that 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 nothing was charged by the Opposite Party which was beyond the terms and conditions of the allotment agreement.

7.         It was further stated that the complainant was informed at the time of execution of allotment agreement that Rs.60,000/- would be payable against the car parking and he accepted the same. It was further stated that even in the schedule attached with the allotment agreement, it was clearly mentioned that an amount of Rs.60,000/- was payable towards car parking. It was further stated that complainant had agreed while signing the allotment agreement that he shall pay interest free security deposit to be worked at the time of handing over of possession. It was further stated that as per Clause 24 of the allotment agreement, the complainant undertook to pay the interest free maintenance and security deposit. It was further stated that regarding allegation of 60% of space on roof, as per clause 23 of the allotment agreement, the complainant agreed that he had right to use and enjoy the terrace and no one was restraining him by any means. It was denied that the complainant was being put to great inconvenience due to the activities and movements of labour and vehicle carrying construction material in the area. It was further stated that many families were residing therein, therefore, question of inconvenience was absolutely frivolous and baseless. It was further stated that Gym, table tennis, snooker table and club was operational and functional. It was denied that additional facilities were not provided.

8.         It was further stated that maintenance was reduced to Rs.1.20Ps per sq. feet and the previously charged amount @Rs.2/- per sq. feet was to be settled against future payment of maintenance. It was further stated that the Opposite Party took up the matter with M/s Star Facilities Management and convinced them to reduce the rates of maintenance and the same were revised. It was further stated that the complainant miserably failed to point out any deficiency in service or unfair trade practice on the part of the Opposite Party. it was further stated that after accepting the possession, dispute raised rgarding increased area was unjustified. 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.

9.         The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Party. 

10.       The Parties led evidence, in support of their case.

11.       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, as stated above, in the opening para of the instant order. 

12.       Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

13.       We have heard the Counsel for the appellant/Opposite Party, at the preliminary stage, and have gone through the evidence, and record of the case, carefully. 

14.       The Counsel for the appellant/Opposite Party submitted that as per Clause ‘G’ of the allotment letter, the super built-up area of the apartment, in question, allotted to the complainant, was 1525 sq. ft. He further submitted that as per Clauses 8 and 9 of the allotment letter, respondent/complainant gave his consent to any variation, addition, alteration and modification and super area could increase or decrease. He further submitted that the Local Commissioner appointed did not associate the appellant/Opposite Party at the time of inspection. He further submitted that the Local Commissioner did not calculate the area on account of external services (U.G. Water Tank, Service Station, Pump Room, S.T.P Exhaust and Fresh Air Shaft, Generator Fuel Shaft, Guard Room Meter Room & Driver Room), which as per the appellant/Opposite Party was 4.850 sq. mt.  and the same in terms of sq. feet came to 4.850 sq. mt. = 52.20 sq. ft. and, thus, the District Forum erred in relying upon the report of the Local Commissioner whereby he assessed the super area to the tune of 1587 sq. ft. as against 1657.440 sq. ft. as per the Architect of the Company.

15.       After giving our thoughtful consideration, to the contentions, raised by the Counsel for the appellant/Opposite Party and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.

16.       It is evident that at the time of allotment of the apartment, in question, to the respondent/complainant, the tentative super area of the said apartment was 141.64 sq. mts. = 1525 sq. ft., which was firstly increased to 1725 Sq. ft. vide offer of possession letter dated 19.3.2012 (Annexure C-2) and the same was again revised to 1657 sq. ft. vide letter dated 18.5.2012 (Annexure C-3). To adjudicate the issue, as to whether, increase in the area was justified or not, the appellant/Opposite Party as well as the respondent/complainant were asked to suggest the names of panel of persons, out of which, Local Commissioner could be appointed. Despite offering opportunity thrice i.e. on 4.6.2014, 11.6.2014 and 26.6.2014, the appellant/Opposite Party did not suggest any name. However, out of the two names, suggested by the respondent/complainant, Sh. Kanwaldeep Singh, Architect was appointed as the Local Commissioner by the District Forum vide order dated 10.07.2014. The District Forum has, in minute detail, discussed the  report of the Local Commissioner and also dealt with the objections raised by the appellant/Opposite Party, in Paras 21 and 22 of the order, which are extracted hereunder:-

“21.      We have given our thoughtful consideration to the above arguments of the OP but we regret our inability to accept the same. The circumstances on record show that the conduct of the OP after the filing of the application for the appointment of Local Commissioner by the complainant has not been above board. The application for appointment of Local Commissioner was opposed by the OP. Though the OP had every right to oppose the application for appointment of Local Commissioner, yet after the same was allowed on 4.6.2014, both the parties were given an opportunity to suggest the names of the persons for appointment as Local Commissioner but, the OP did not furnish any name either on 11.6.2014 or on 26.6.2014 or on 10.7.2014. Thus, we were left with no alternative but to appoint one of the persons suggested by the complainant as a Local Commissioner.  Even after the order dated 10.7.2014 passed by this Forum appointing Sh. Kamaldeep Singh, Architect as Local Commissioner, no objection against his appointment was filed.  The OP did not file any application prior to the filing of objections on 4.12.2014 that the Local Commissioner was not accommodating it and he had visited the site on 29.8.2014 without prior intimation to the OP. To cap it all, the report of the Local Commissioner was filed on 29.9.2014, in the presence of the learned proxy counsel for the OP and the case was listed for filing of the objections on behalf of the parties on 21.10.2014. However, on that date, objections were not stated to be ready and the case was adjourned to 11.11.2014. On 11.11.2014, objections were not filed on the ground that the copy of the report of the Local Commissioner was not received. The case was again adjourned to 2.12.2014 for filing of the objections.  Again on 2.12.2014, the counsel for the OP made a request for adjournment for filing objections and the same were filed only at 2:00 p.m. on 4.12.2014. The OP has been delaying the process of report of the Local Commissioner and objections on one ground or the other knowing well that the proceedings before this Forum are summary in nature.  There is no such application in writing moved to the Local Commissioner that the architect of the company could not reach the site on 24th August being Sunday. Even if it is assumed that the architect of the company could not reach the site on 24th August, none prevented the OP from sending any other responsible person in whose presence the measurements could be taken. The objections of the OP against the report of the Local Commissioner are supported only by a short affidavit of Mr. Deepak Makhija, authorised signatory. That affidavit is no affidavit in the eyes of law. The OP has not filed any affidavit of a responsible officer of the company to show that the Local Commissioner visited the site without prior intimation to him. Thus, we do not find any merit in this contention that no prior intimation of visit was given to the OP by Sh. Kamaldeep Singh, Architect.  We may mention that in consumer complaint No.220 of 2013 titled as Vikramjit Singh & Anr. Vs. Ansals Lotus Melange Projects Pvt. Limited & Anr., one Architect was appointed as Local Commissioner in similar circumstances and during that visit the representative of the OP joined the proceedings but still a report unfavourable to the OP was given by the architect appointed in that case. It appears that in this case no representative of the OP participated in the proceedings of the Local Commissioner deliberately knowing well that the super area of the flat is not 1657 sq. ft.  In fact, the OP wanted to create a ground for challenging the report of the Local Commissioner by not joining the proceedings being taken by the Local Commissioner.  The entries of the copy of register Annexure O-1 (Colly.) cannot be believed because the same were prepared by an employee of the OP who has not even filed his own affidavit. 

 

22.        As far as the contention of the OP that the measurements have not been taken properly and the area of the flat has been calculated without indicating the width of the walls, the sit outs/balconies on the ground floor etc. is concerned, it is significant that the report Annexure O-2 prepared by the architect of the OP alongwith lay out, copy of which is Annexure O-3, 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 measurement report and the lay out prepared by Sh. Kamaldeep Singh, Architect, Local Commissioner. The objections against the report of the Local Commissioner are also not verified. The copy of the measurement book or summary of areas Annexure R-4 is not signed or verified by any engineer of the OP.  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 measurement report of Sh. Kamaldeep Singh, 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 1587.291 sq. ft. instead of 1657.441 sq. ft. calculated by the architect of the OP.  In this view of the matter, the demand of the OP of an amount of Rs.2,57,532/- alongwith tax of Rs.7,958/- representing the super area as 1657.441 sq. ft. is illegal.  Since the complainant has already made the payment of Rs.2,65,490/-, the OP is required to re-calculate the amount after treating the super area to be 1587.291 sq. ft. instead of 1657.441 sq. ft. and refund the excess amount charged from the complainant.”

 

17.       The main argument of the Counsel for the appellant/Opposite Party was that the Local Commissioner did not calculate the area on account of external services vis-à-vis U.G. Water Tank, Service Station, Pump Room, S.T.P Exhaust and Fresh Air Shaft, Generator Fuel Shaft, Guard Room Meter Room & Driver Room, which alone was 4.850 sq. mtr. = 52.20 sq. ft. The District Forum has rightly held that the measurement report of the Local Commissioner was based on sound reasons and actual measurements and there was no reason to disbelieve that the super area of the apartment of the respondent/complainant was found to be 1587.291 sq. ft. instead of 1657.441 sq. ft. calculated by the architect of the appellant/Opposite Party.

18.       Part of Clause 2 of the allotment letter dated 22.09.2009 (Annexure R/3), relating to super area, being relevant, 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 Rooms 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…….”

19.       A bare perusal of the afore-extracted clause, clearly reveals that super area shall include 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 Rooms etc. The Local Commissioner, in its report, as is evident from summary of measurements at page 6 of District Forum order, included common area of balconies & sunshades, common area of lift well, common area of staircase lobby on ground floor, common area of staircase lobby at terrace level, common area of machine room, common area of pergola, common area of elevation features and common area of water tank proportionally except the area for external services. Clause 2 of the allotment letter, extracted above, does not indicate that external services shall constitute part of the super area. The Local Commissioner has duly taken into account, the areas under different heads as mentioned in Clause 2 while arriving at his calculation. Local Commissioner appointed by the District Forum was an independent entity and his calculations/assessment completely matched with that of Architect of the appellant (as is evident from page 6 of District Forum order) in respect of 8 out of 10 items and this itself establishes that the Local Commissioner made a fair and correct assessment. It was only in respect of one item that there was small variation and, in our considered opinion, the Local Commissioner did not rightly calculate the area for external services. Further, the appellant/Opposite Party did not bring on record any document to rebut the report of the Local Commissioner. The appellant/Opposite Party also failed to file any affidavit of its responsible officer to show that the Local Commissioner visited the site without prior intimation to him and, as such, its plea that no prior intimation of visit was given to the appellant/Opposite Party by the Local Commissioner, and the Local Commissioner did not assess the area for external services, is bereft of merit. Further the Notifications dated 4.4.2011 and 2.4.2012 issued by the Ministry of Environment & Forests, Government of India regarding definition of super area/built up area and basis for calculation thereof, referred to by the applicant/Opposite Party in Para 10 of the appeal, have not been brought, in evidence. The District Forum, in our considered opinion, rightly directed the appellant/Opposite Party to recalculate the amount of super area by treating the same to be 1587.291 sq. ft. instead of 1657.441 sq. ft and refund the excess amount charged from the respondent/complainant to him. The appellant/Opposite Party charged an amount of Rs.2,57,532/- plus Rs.7,958/- tax from the respondent/complainant whereas in fact only a part of it was payable by the respondent/complainant. This clearly amounted to deficiency, in rendering service, and indulgence into unfair trade practice.

20.       No other point, was urged, by the Counsel for the appellant/Opposite Party.

21.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality, warranting the interference of this Commission.

22.        For the reasons recorded above, the appeal, being devoid of merit, is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

23.       Certified copies of this order, be sent to the parties, free of charge.

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

Pronounced.

June 02, 2015.

 

Sd/-

(DEV RAJ)

PRESIDING MEMBER 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

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