The distinction between refund of amount and compensation under the 2016 Act, and the power of the Regulatory Authority and the Adjudicating Officer to decide such matters.

JUDGMENT

Anil Kshetarpal, J. - This batch of appeals (detail whereof is given on the foot of the judgment) has been preferred by the promoters/ developers challenging the correctness of the orders passed by the Real Estate Regulatory Authority and the Appellate Tribunal. Both the authorities have directed the appellant to refund the excess amount which was recovered from the allottees on account of alleged additional super area. The promoter has also been directed to pay interest on the delayed delivery of possession of the apartments. It may be noted here that neither before the Appellate Tribunal nor before this Court, the appellant disputes the correctness of its liability to pay interest for the delayed payment of the amount. Hence, in these appeals, the only issue debated is with regard to the correctness of directions to refund the amount charged due to alleged increase in the super area.

2. Some facts are required to be noticed.

3. The learned Senior Counsel representing the appellant admits that the facts in each case may be slightly different, however, the point in issue is common, therefore, it is convenient to dispose of the appeals by a common judgment.

4. The learned senior counsel representing the appellant has stated the facts from RERA Appeal No.21 of 2022. Briefly, the facts are as follows:-

The allotment of Apartment No.1102, 11th Floor, Tower-11, Sky Garden, Sector 66-A, Mohali, was made on 27.06.2014 for Rs. 53,00,000/-+(plus) applicable Service Tax, with respect to a 2BHK Apartment of 1345 Sq. feet (approximately) on the terms and conditions specified therein to the respondent. The allottee had paid an amount of Rs.13,65,942/- before the allotment letter and an amount of Rs.5,30,000/- plus applicable service tax was required to be deposited within a period of 30 days from the date of issue of the letter as the construction had already begun. Remaining payment has already been made in installments. Apart from the price of the apartment, the allottee was required to pay for the following facilities:-

(a) One Time Power Back Up Capital Expenditure Rs.40,000/- Lump sum.

(b) Monthly Power Back Up Consumption Charges

(c) One Time Club Membership Fee Rs.50,000/-

(d) Quarterly Club charges to be determined by the Company later on

(e) Water supply charges as per consumption

(f) Electricity charges as per consumption to the Punjab State Electricity Corporation Limited

(g) Sewerage charges as determined by the Company/Local Authority.

(h) PLC 3% extra green facing.

However, it can be reviewed from time to time by the company.

5. As per the terms and conditions of the allotment letter, the possession was to be delivered within a period of 36 months from the date of issuance of the allotment letter. For the decision in these appeals, the most important Clause-2.5, which is extracted as under:-

'2.5. The above price is tentative and subject to variation with reference to the actual measurement of the allotted Apartment and balance if any is to be deposited within 30 days of demand."

6. There was a delay in the delivery of possession of the apartments. In the meantime, the Central Government enacted the Real Estate (Regulation and Development ) Act, 2016 (hereinafter referred to as 'the 2016 Act'), with effect from 25.03.2016. Being an on going project, the appellant registered its project under the Act of 2016. Before delivery of possession, the allottee was directed to deposit Rs.1,84,584/- vide communication dated 17.03.2018 while projecting that there is a change in the super area of the apartments in the Sky Garden project. The promoter informed that the super area of the apartment has increased by 86 sq. feet implying thereby that the final super area of the respondent's apartment now stands at 1431 sq. feet on account of exclusive premium skydeck and tower entrance reception area which was, erroneously left out while computing the prior super area of 1345 sq. feet. The increase in the price was worked out @ Rs.3,38,000/-, however,