In a housing construction contract, if the builder constructs the building as per the sanctioned plan and each flat has the area as specified in the agreement, and the complainant has agreed not to raise any dispute regarding the saleable area, there is no deficiency in service provided by the builder.

D.P. Wadhwa, J.—Appellant was Complainant before the National Consumer Disputes Redressal Commission (for short ‘National Commission’). Proceedings were initiated under the Consumer Protection Act, 1986, under which National Commission has been constituted to entertain complaints where value of the goods or services and compensation, if any, claimed exceeds Rs. 20 lacs. National Commission is also an Appellate Authority. It hears the appeals from orders of the State Commission.

2. The complainant, a co-operative housing society, had complained short-fall in services rendered by the respondent, a builder and developer, which had agreed to construct and sell 64 flats to the complainant in a building called Tulip Park. The complainant is not happy with the order dated June 21,1996 of the National Commission in one aspect and it is that while under the agreement dated May 10, 1990 respondent had agreed to construct the flats having total saleable area measuring 34,361 sq. ft. at the rate of Rs. 630/- per sq. ft. but the saleable area actually measured comes to 29,788.34 sq. ft. There being thus short-fall of 4,572.66 sq. ft. in the constructed area. Since complainant had paid the price for the area of 34,361 sq. ft. and it got only 29,788.34 sq. ft. It claimed refund from the respondent of an amount of Rs. 28,80,776/- (4,572,66 sq. ft. x Rs. 630/- per sq. ft.). The National Commission did pot agree with the complainant. In this appeal by the complainant we are called upon to decide on, what the appellant says, if there is any deficiency in services provided by the respondent, the builder.

3. Under Clause (g) of Section 2(1) of the Act, “deficiency” means “any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”. A complaint lies if there is deficiency in service of housing construction. “Service” under Clause (o) of Section 2(1) means service of housing construction as well. Grievance of the complainant is that the respondent failed to give 34361 sq. ft. of area in the building Tulip Park in accordance with the terms of the contract and that less area was given. When this fact was brought to the notice of the respondent it took the stand for the first time that there was a mistake and it had forgotten to include the stilt area in the agreement and claimed that the complainant had to pay for the stilt area. There is no ground floor as the building is constructed on stilts. Price of land is included in the cost of construction calculated at the rate of Rs. 630/- per sq. ft. Actual total saleable area given was 29,788.34 sq. ft. and thus there was the shortfall of the actual area. The respondent was liable to return the amount for the shortfall of this area aggregating to Rs. 28,776/-.

4. We may at this stage refer to some of the terms of the agreement, alleged breach of which led the complainant to approach the National Commission. The agreement recites as to how the respondent, as developer, became entitled to sell the land and the building constructed thereon. Respondent was to construct the building as per sanctioned plan granted by the Bombay Municipal Corporation. As per the sanctioned plan respondent was required to construct 64 flats in two wings ‘A’ and ‘B’, wing ‘A’ has seven floors with four flats on each floor totaling 28 flats. Wing ‘B’ has six floors with six flats on each floor totaling 36 flats. With the agreement a plan was annexed showing the flats on each floor of both the wings giving sq. ft. area of the flat. The plan, however, does not show the area of the common places. Agreement specifically records the declaration of the builder that the building is sanctioned for development and construction as per the sanctioned plan granted by the Bombay Municipal Corporation.