IMPORTANT POINT
Builder is liable to compensate complainants for delay in offer of possession of flat.

ORDER

This complaint under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) has been filed alleging deficiency in service on the part of the opposite party in delay in offering possession of a flat booked by them with the opposite party and in charging an additional amount by arbitrarily increasing the super area of the flat.

2. The relevant facts of the case as per the complainant, in brief, are that they had booked a residential unit on 30.11.2007 admeasuring approximately 2380 sq.ft (221.11 sq. mtr.) in Kalypso Apartments, a project promoted and executed by the opposite party. Apartment no. 0802 in Tower No. 3, Kalypso Apartments, Jaypee Green, Noida was allotted on 17.02.2008 for a sale consideration of Rs 1,38,82,700/- of which the complainants have paid Rs.1,20,88,930/-. Possession was to be delivered within 36 months which period expired in February, 2011. The opposite party issued an offer of possession on 03.06.2015 stating that the area of the subject flat was increased from 2380 sq ft to 2612.52 sq ft and accordingly a demand for Rs.12,90,486/- was raised. According to the complainant, this increase was arbitrary as it could have been done only with the prior consent of the complainants, which was not obtained. Secondly, the opposite party, vide this letter, offered a rebate for the delay in the offer of possession of Rs.11,64,309/-. It is stated that the increase in super area by 232.52 sq ft or 9.77% of the original super area was also contrary to section 4(4b) of the UP Apartments Act, 2010. Reliance is placed on this Commission’s order in Developers Township Property Owners Welfare Society Vs. Jai Prakash Associates Ltd., CC No. 1479 of 2015 which held that “We find enough force in the arguments submitted by the counsel for the Complainant, if there is any increase in the internal area, the OP is entitled to get the additional amount that too at the fixed rate at the time of booking. However, no such proof has been produced on record. Consequently, we hereby hold that the OP is not entitled for any additional amount.” The complaint submits that super area comprises internal area of the apartment together with the proportionate share in the common areas in the said project and the area of the common area cannot be increased without consent of the allottees.

3. The complaint contends that the opposite party’s justification of the delay in the offer of possession is unacceptable since it is based upon the order of the National Green Tribunal (NGT) in OA No. 158 of 2013 which was operative between 28.10.2013 to 03.04.2014 restraining the Noida Authority from issuing a completion certificate. It is contended that this order had prohibited construction without prior environmental clearance which the opposite party failed to obtain. As per the order dated 11.01.2013 of the NGT relied upon by the opposite party in their evidence affidavit, the restriction was only on extraction of ground water for construction work and the delay was due to the latches of the opposite party. The complainants state that the order of the NGT was dated 11.01.2013 which was after the scheduled date of handing over possession in February 2011 and therefore is not tenable. It is further argued that the opposite party had not obtained the completion and occupation certificates, the onus for which was on them, and therefore the offer of possession was invalid. The complainant is therefore, before this Commission with the following prayer:—

(i) To declare that the opposite party is guilty of adopting unfair trade practice by imposing unreasonable restrictions upon the complainants with respect to the Apartment bearing unit reference no. 0802 in Kalypso Tower no. 03, at Jaypee Greens, Noida, Uttar Pradesh with approximately super area of 2380 sq ft (221.11 sq meters) by asking them to make the payment of Rs.12,90,486/- and other charges for the increase in the super area of the said apartment;

(ii) To direct the opposite pa