IMPORTANT POINT
Super Built-up area – The alteration in super built up area in large projects including common areas is a common feature and is acceptable if is within a reasonable variable of 5 to 10%.

ORDER

Subhash Chandra, Presiding Member—This complaint filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short, the “Act”) alleges deficiency in service by the Opposite Party in delay in handing over possession of the apartment booked by the Complainants in a project promoted and executed by the Opposite Party.

2. This common order will dispose of Consumer Complaint Nos. 1852 of 2017 and 1853 of 2017 as the facts in both complaints are similar and relate to the same Complainants and the same project of the Opposite Party. For reasons of convenience, Consumer Complaint No. 1852 of 2017 is taken as the lead case.

3. Upon notice, Opposite Party contested the complaint by way of written statement. Complainants thereafter filed their rejoinder. Parties filed their evidence by way of affidavit. Short synopsis of arguments was also filed by both the parties.

4. The relevant facts of the case, in brief, are that the Complainants had booked a 3 BHK with servant quarter apartment no. C 502, 5th Floor, Tower C admeasuring 1758 sq ft super built up area in the Opposite Party’s project “Hamilton Heights”, Sector 37, Faridabad on 15.01.2008 for a total consideration of Rs.78,42,825/-. As per the terms of the Buyers’ Agreement/Agreement to Sell (“Agreement”) dated 30.12.2008, by when Rs.10,78,700/- had been paid towards the consideration possession of the apartment was to be handed over within 36 months, i.e., by December 2011. However, the Opposite Party failed to fulfil this obligation and delivered physical possession only in October 2015, after an inordinate delay of nearly four years. Despite such delay, the Complainants have alleged that legal possession has yet to be handed over, as the Opposite Party failed to obtain the requisite Occupation Certificate for Tower C from the Director, Town and Country Planning (DTCP).

5. The Complainants have further alleged that the delay on part of the Opposite Party has caused significant financial loss, mental agony, and harassment to them. They contend that despite their making timely payments amounting to the entire sale consideration, the Opposite Party failed to complete construction in all respects and deliver essential amenities such as the club, solar water heating system, and separate entry/exit ramps for basement parking.

6. It is also averred by the Complainants that the Buyers’ Agreement was one-sided and arbitrary. Despite compliance with payment demands, the Opposite Party unilaterally increased the area of the apartment and demanded additional charges without obtaining the consent of the Complainants. Moreover, the Opposite Party have failed to facilitate the registration of the property due to their inability to secure the Occupation Certificate, thereby rendering the possession illegal under law.

7. The Complainants have also drawn attention to Memo No. 11051 dated 21.11.2008 issued by the Director, Town and Country Planning, Haryana, wherein Clause 11 prohibits the occupation of any building without a valid Occupation Certificate. It is alleged that the Opposite Party, in violation of this clause, handed over possession illegally and concealed material information regarding the non-issuance of the Occupation Certificate. Furthermore, the Opposite Party illegally charged Rs.1,75,000/- for parking space, which, as per Clause 13 of the same Memo, forms part of common areas and cannot be separately transferred or leased to flat owners.

8. The Complainants have, therefore, approached this Commission alleging gross deficiency in service, unfair trade practices, and fraudulent conduct on the part of the Opposite Party. They assert that the delay in construction, failure to obtain statutory permissions, and concealment of facts have caused them immense hardship. Alleging deficiency in service as the Opposite Party failed to remedy the grievances, the Complainant has filed this Complaint praying for the following reliefs:—

(a) Direct the Opposite Party, jointly or se