IMPORTANT POINT
Basement floor has to be used only for car park and open area has also to be used as car parking area.

Petitioners/Opposite Parties being aggrieved by order dated 11.1.2008 passed by State Consumer Disputes Redressal Commission, Chennai (for short, ‘State Commission’) have preferred this revision petition.

2. Brief facts are, that a common consumer complaint was filed by Five Individuals and Two Companies—Complainants/ Respondents against the Petitioners. Complainants’ case is that they purchased constructed residential flats from the petitioners, which could not be used for commercial purpose. Each of them purchased an undivided 1/24th share in the entire 50 cents of the land and occupied their respective flats in July 1996. They found out shortfall in the area of land recorded in their agreement and the sale deed. It is alleged, that Petitioners arbitrarily executed the sale deeds without notice to the complainants, resulting in shortfall in the land. The complainants found, that Petitioners have obtained revised approval plan from Coimbatore Municipal Corporation, after a lapse of 14 months from the original plan that was obtained on 20//12/1993. As per the approved plan, basement floor was meant and earmarked exclusively for car-parking, office room, recreation hall and other amenities. Petitioners have no right to make use of any portion in the entire 50 cents of land or in the basement area, after the construction was over and possession handed over to the individual flat owners. Further, petitioners could not remain in the basement area or run their office or store building materials in the area meant for car parking. It is alleged that petitioners have converted the basement area into their office room, computer room, store room, dining hall and parking area for their use. This was against the original agreement entered into between the parties. Further, as per Tamil Nadu Apartment Ownership Act, 1994 (For short, ‘Apartment Act’) the common areas and facilities should remain undivided and no apartment owner or any other person could bring any action for partition or division of any part thereof and any covenant to the contrary, would be null and void. Thus, petitioners have grossly committed serious infringement of the provisions of law and it amounts to unfair trade practice. Lawyer’s notice dated 13/5/97 in this regard was also issued calling the Petitioners to vacate the premises. In reply, petitioners stated that recreation hall and office room, formed part of common amenities exclusively belonged to them and complainants knew, that petitioners were putting up their office in the basement. Hence, complaint was filed for direction to the petitioners to remove and vacate the office and other rooms put up by them in the basement area, which belonged to the complainants and pay compensation of Rs.4,50,000/- towards damages and mental agony besides cost.

3. Petitioners in their counter statement took the plea, that relief sought for is for recovery of possession, therefore complaint with regard to immovable property is not maintainable before the Consumer Forum. Only a civil suit could be maintained.

4. On merits, it is stated that building plan was originally approved as per approval dated 23/2/95, whereunder additional built up area was sanctioned and constructed. The area of share in the land to be conveyed in favour of each purchaser, would depend upon the total built up area of the building. The complainants were made aware of the fact, that a lesser extent of land was being conveyed which would be evident from Form No.13 signed by them. Petitioner No. 1 without prejudice, offered to convey the shortfall on payment of stamp duty and registration charges. The complainants did not come forward to pay and purchase the same. It is further stated, that Clause No.4 of agreement entered into between the parties, contemplate variations and alterations in the approved plan as might be suggested by the architect and decision of architect was final. Further, Clause No. 17 of the agreement, clearly stipulated that only such o