IMPORTANT POINT
Delay compensation - The payment of delay compensation at the rate of Rs.5 per square feet per month by the OP(s) is an admission of delay on their part. Hence, the complainant(s) in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OP(s).

ORDER

The present batch of Consumer Complaints (CCs) have been filed by the Complainants against Opposite Parties(OPs) as detailed above, inter alia praying for directions to the OPs to:—

(i) To pay delay compensation.

(ii) Refund the excess amount charged on account of super area.

(iii) Pass an order on dilution of equity in land underneath the tower.

(iv) Compensation for deficiency in services.

(v) Pay litigation fee.

2. Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and against the same Opposite Parties except for minor variations in the dates, events and flat numbers etc., which are summarized in the Table at Annexure-A, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) No. 1687 of 2017 is treated as the lead case and facts enumerated herein under are taken from CC/1687/2017.

3. Notice was issued to the OPs. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainants/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table-A.

4. It is averred/stated in the Complaint that:—

(i) The complainant booked a flat on 21.01.2012 in the group housing colony known as AURA of the OPs in Sector 110 Gurgaon Haryana for a total consideration of Rs.1,26,35,988/- and was allotted a flat number J-1102. ABA was signed on 19th March 2012. Committed date of possession as per ABA was 32 months from the date of start of the construction of the tower in which the unit in question is located. The possession of the flat was given on 31.01.2017. On inspection of the flat, it was found that the apartment was not fit for habitation.

(ii) On 31.05.2017, the complainant received an email from the OP wherein it was stated that the rectification work has been completed and the complainant was requested to collect their keys from the OP.

(iii) As per detailed site layout plans of ABA, tower J and K of AURA was to consist of 12 floors each, however the opposite party on 28th May 2013 intimated the complainant about change of building plans of H, I, J, K towers and unilaterally increased the number of floors from 12 to 18. The said intimation came after the opposite party had collected an amount of 60% of the total sale consideration.

(iv) The opposite party has increased the Super area from the original 2300 square feet to 2397 square feet.

(v) The opposite party paid delay compensation at the rate of Rs.5 per square feet per month.

(vi) The flat delivered finally was not fit for habitation.

5. The OP-1 in their written statement/reply stated that:—

(i) The complainant admitted that he purchased the flat after due inspection of the documents and satisfied with layout plans of the project, sanctioned and approved by Director General, Town & Country Planning (DTCP). This naturally includes the Apartment Buyer Agreement (ABA) and all terms therein.

(ii) Utilisation of left over FAR for building additional floors, etc. is allowed in terms of para 2 of Clause 6 even when RWA has been formed in a completed project as provided for in Clause 28 of the ABA. The OP applied for revision of building plan of towers H, I, J, K and community centre and Economically Weaker Section for utilising the left over FAR. The OP got in-principle approval vide memo dated 6 May 2013. The DTCP directed the OP to publish the proposed revision of building plans in leading newspapers and also send a letter regarding this to each allottee. This was duly complied with by the OP and has been accepted by the complainant as well. DTCP finally gave approval on 10.06.2014.

(iii) OP submits that the quantum of p