NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
D. Syamala Kalyani and Ors. – Appellants
versus
M/s. Yasotheja Constructions and Ors. – Respondents
First Appeal No.284 of 2013 and First Appeal No.517 of 2013
Decided on 27.8.2021

IMPORTANT POINTS
(1) After taking possession over constructed flats per Supplementary Agreement, Appellants are estopped from challenging its validity.
(2) Under Section 24 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987, sale of common area and common facilities has been prohibited; hence, inclusion of cost of common area by Respondent, for its realization, in area of flats, in equal proportion, is not illegal.
(3) Construction of pent-house is neither unauthorised nor unfair trade practice.

Headnote:

Consumer Protection Act, 1986 – Section 19 (Consumer Protection Act, 2019 – Section 24) – (Two) First Appeal – Both appeals filed against Order dt. 01.03.2013 of State Commission partly allowing complaint and directing Respondents to pay (i) Rs.1,98,000/, towards rent, delay in handing over possession (ii) Rs.1,59,000/- towards value of solar water heater for 3 flats, of the complainants (iii) Rs.5000/- as cost and (iv) to provide car parking area to Appellant/Complainant-2 – Facts: Respondent had to construct apartments over the aforesaid land for complainants and another person – Complainants allotted apartments per layout plan – Respondent handed over possession to complainants on 30.10.2011 – Additional facilities in apartments provided – Complainant-2 not allotted any car parking place - Respondent started building pent-house in car parking space – Notice sent to Respondent, no reply – Complaint given to municipal corp. for illegal construction – Respondent sold the pent-house to someone else, delayed completion of construction for more than 22 months – Complaint filed - Appellants/Complainants failed to prove unfair trade practice or deficiency in service by the Respondent - After taking possession over constructed flats per Supplementary Agreement, Appellants are estopped from challenging its validity - Under Section 24 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987, sale of common area and common facilities has been prohibited - Inclusion of cost of common area by Respondent, for its realization, in area of flats, in equal proportion, is not illegal - No allegation in complaint that owners were not in possession to 36% of the area of car parking place in stilt - Award of rent for car parking place and direction for giving car parking place to Appellant/Complainant-2 illegal - Appellants/Complainants are neither entitled for any refund or delayed compensation - Construction of pent-house is neither unauthorised nor unfair trade practice – Appellants/Complainants are not entitled for cost of solar water heater.

Held: According to the complainants as per revised layout plan total plinth area of 3BHK flat was 132.8 Sq. meter and 2BHK flat was 80.76 Sq. meter, while the actual constructed area of 3BHK flat is 101.97 Sq. meter and 2BHK flat is 65.67 Sq. meter, which is proved from Report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2). A perusal of this report and layout plan shows that report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2) have not taken into account the common area and common facilities viz. lobby for the two flats, stair case and lift etc., which are in between 3BHK flat and 2 BHK flat on every floor. Width of 3BHK flat is equal to length of 2BHK flat in sanctioned layout plan but in the report dated 05.04.2012 width of 3BHK flat was shown as 37 feet and length of 2BHK flat was shown as 30 feet 4 inch as stated in Affidavit of Evidence of Madipalli Tejo Venkata Manikya Ratnakar. The builder has filed a report of Licensed Architect P.V. Siva Kumar dated 01.03.2016 and sanctioned layout plan, along with written submission in First Appeal No. 517 of 2013, in which no difference has been found on the spot between sanctioned layout plan and actual construction in any respect. The builder has obtained Occupancy Certificate dated 09.06.2011, which also raises a presumption that the construction was raised in accordance with sanctioned layout plan. In the circumstances, no reliance can be placed upon Report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2). The complainants have failed to prove that there was unfair trade practice or deficiency in service by the builder.

Vide clause-7 of Development Agreement dated 07.09.2007, the parties agreed for entering into supplementary agreement to meet out any future contingency. Government of Andhra Pradesh changed the Rules relating to construction of Apartments vide G.O. Ms. No. 738 dated 03.10.2007 and G.O. Ms. No. 302 dated 15.04.2008, due to which, layout plan of the apartment, as submitted earlier, was not sanctioned. According to the changed Rules relating to the construction of Apartment, only 10 flats could be constructed over the land of the complainants and Smt. Kanuri Leela. Therefore, the parties entered into a Supplementary Agreement dated 23.06.2008, in which flats A & B were allotted to Smt. D. Shyamala Kalyani, flat 4B was allotted to D. Rama Devi and flats 2B & 3B were allotted to Smt. Kanuri Leela, according to fresh layout plan of the Apartment. The Supplementary Agreement dated 23.06.2008 was acted upon, inasmuch new layout plan was submitted/sanctioned and construction was raised after expending huge money. After taking possession over the flats, which were constructed according to this Supplementary Agreement, the complainants are estopped from challenging its validity. The complainants are not entitled to one more 2BHK flat, in view of Supplementary agreement dated 23.06.2008. Supreme Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division, (1996) 4 SCC 704 and Secretary Bhuwneshwar Development Authority Vs. Susanta Kumar Mishra, (2009) 4 SCC 952, has held that the agreement between the parties are binding upon them.

Under Section 24 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987, sale of common area and common facilities has been prohibited. For the use of flat owners, in the apartment, the builder has to develop common area and common facility. In the present case also, the builder has developed common area and common facilities for use of the flat owners in the apartment. Although, the builder cannot transfer common area and common facilities but it can realize its development cost in equal proportion from all the flat owners, which is common practice throughout the country. Therefore, inclusion of cost of common area, for its realization, in the area of the flats, in equal proportion, is not illegal.

Under Clause-33 of Development Agreement dated 07.09.2007, the owners (including Smt. Kanuri Leela) were entitled to 36% of the area of car parking place. Which area has been allotted and parking places of different flats were also allocated, in stilt. The complainants were given possession of the car parking place in stilt on 26.12.2011. There is no allegation in the complaint that the owners (including Smt. Kanuri Leela) were not in possession to 36% of the area of car parking place in stilt. Award of rent for car parking place and direction for giving car parking place to complainat-2 are illegal.

Under Memorandum of Understanding, the complainants and Smt. Kanuri Leela were required to pay for the excess area of construction, exceeding to their 36% of the area at the rate of Rs.1200/- per Sq. feet. Due to delay in construction, cost of construction has increased due escalation of price as such instead of Rs.1200/- per Sq. feet, the builder has charged Rs.1400/- per Sq. feet for the excess area, exceeding to 36% area of the owner. The complainants agreed for it and paid Rs.5 lakhs on 14.08.2010 and Rs.4.5 lakhs on 02.05.2011. One lakh remained to be paid. Now they are illegally demanding for refund of this money. They are not entitled for it.

So far as the compensation for delayed possession is concerned, the construction of the apartment was firstly delayed due to change of apartment construction rules due to which earlier layout plan was not sanctioned. Madipalli Tejo Venkata Manikya Ratnakar, in his Affidavit of Evidence has stated that after issue of G.O. Ms. No. 302 dated 15.04.2008, Mr. Damaraju Narsimha Rao, who is husband of complainant-1 and an advocate, consulted several licensed architect as he was bothering due to reduce of number of the flats, which took sufficient time. When, several architect agreed with the layout plan of the builder, then he permitted the builder to apply for layout plan which was sanctioned on 13.09.2009. On completion of the construction, the builder applied for issue of Occupancy Certificate, which was issued on 09.06.2011. The complainants asked the builders for extra facilities of (i) Plaster of Paris, (ii) Modular kitchen, (iii) Hub & Chimney, (iv) R.O. system, (v) Air conditioners and (vi) All Cub boards, which has been provided by the builder, which further delayed delivery of possession. Possession of the flats were delivered on 30.10.2011, which was well within 2 years (completion period) and 3 months (grace period), from the date of sanction of layout plan. Delay was beyond the control of the builder as the government has changed the construction rules due to which earlier layout plan was not sanctioned and thereafter, delay was caused for providing extra facility to the complainants. The complainants are not entitled for delayed compensation.

Development Agreement dated 07.09.2007 provides Schedule-B property, in the share of the builder, which included pent-house. Therefore, it cannot be said that the pent-house was constructed in unauthorised way. So far as the allegation that pent-house was not constructed according to sanction layout plan, is concerned, the complainants have already made a complaint in this respect to Municipal Commissioner. Construction of pent-house is neither un-authorise nor unfair trade practice.

So far as the claim for the value of solar water heater is concerned, the builder has stated that technical problem of unheated water supply in lower floor, was experienced in solar water heater. When this fact was brought to the notice of the complainants, they agreed for installation of electric geysers. As such electric geysers were provided with the consent of the owners, in their flats as well as all other flats. After installation of electric geysers and taking possession with full satisfaction letter was given on 01.11.2011. Now the complainants are claiming cost of solar water heater in order to avoid legal payments of the builder. In view of satisfaction letter dated 01.11.2011, issued by the complainants, there is no reason to disbelieve the version of the builder. The complainants are not entitled for cost of solar water heater. (Paras 11, 12, 13, 15, 16, 17, 18 & 19)

Result: First Appeal No.284 of 2013 partly allowed; First Appeal No.284 of 2013 dismissed for rest of reliefs, First Appeal No. 517 of 2013 allowed.