1.         The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 21 (b) of Consumer Protection Act, 1986, against the order dated 26.09.2017 of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 1111/2016 in which order dated 25.10.2016 of District Forum, Panipat (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 145/2014 was challenged, inter alia praying for:

a)         setting aside the judgment dated 13.10.2017 passed by State Commission in FA/1111/2016.

b)        allowing the refund of Rs.5,22,177/- along with interest @ 17% per annum till paid.  

2.         While the Revision Petitioners (hereinafter also referred to as Complainants) were Appellants before the State Commission and Complainants before the District Forum and the Respondent(s) (hereinafter also referred to as Opposite Party (OP) was Respondent No.1  before the State Commission in FA/1111/2016 and OP-1 before the District Forum in Complaint No. 145/2014. OP-2 has not been made a party before this Commission.

3.         Notice was issued to the Respondent on 20.04.2018.  Parties filed Written Arguments on 20.03.2019 (Petitioners) and 24.11.2023 (Respondent) respectively.

4.         The present Revision Petition has been filed with a delay of 28 days (as per Registry).   IA/2672/2018 has been filed by the Petitioners for condonation of delay. The delay in filing the Revision Petition is condoned after considering the reasons stated in the condonation of delay application.

5.         Brief facts of the case, as presented by the Complainant and as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -  

The complainant booked a villa in Sushant Homes with the OP, having plot area 239 sq. yards i.e. 200 sq. meters and built up area of 1200 sq.ft. approximately in the scheme called as Sushant City, Panipat  and executed an agreement dated 27.08.2008 with the OP.  OP executed the conveyance deed in favour of the complainants for house No. 2742-L, on 04.08.2012.  The OP transferred the allotment of said Villa in the name of the complainants, which has been duly endorsed by the OP in the agreement dated 27.08.2008. Vide letter dated 06.06.2011, OP conveyed complainants to take possession of the said Villa claiming that all development work and infrastructure has been completed from OP side or in other words OP alleged that the OPs had completed all the obligations on their part.  On 16.08.2011, the OPs  issued a letter dated 16.08.2011 in the name of Additional General Manager, Sushant City, Panipat for handing over physical possession of Villa to the complainants.  Official formalities were completed on 07.09.2011. But there were several defects found in the Villa, which the OPs got completed in the end of  February , 2012 .  The complainants had to pay electricity charges and maintenance charges for the above said period from September 2011 to Feb. 2012 without using the same.  The quality of the material used in construction of Villa is very cheap and were not as was assured in the agreement.  The OPs issued final call notice along with letter dated 06.06.2011.  The OPs worked out Rs.7,49,814/- payable to them in addition to deposit of Rs.2,04,550/- with the SBI Panipat for registration expenses and Rs.20,000/- as Security for Common Maintenance Charges,  whereas 10% i.e. Rs.2,97,500/- were actually payable as per schedule (1-B) at the time of possession.  All of sudden, a burden of very huge amount of Rs.9,75,364.42 was put on the complainants which became very difficult to manage the same for getting the Conveyance Deed executed and to take possession of the Villa.  The complainants deposited the said amount with the OPs under the forced circumstances that too under protest otherwise OPs were not ready to get the Conveyance Deed executed and to take over the possession of the Villa in question despite the fact of already receiving the amount of Rs.26,92,822.00 from the complainants. In addition to it, had the complainants not taken over the possession of the said Villa within 60 days from the due date i.e. 30.6.2011 the OPs may have charged the Holding charges @ Rs. 5/- sq. ft. per month in addition to monthly maintenance charges (now being levied @ Rs. 750/- per month, which is still under dispute due to increasing it more than double). Thus, the OPs have increased the above said Super Built- up Area from 1200 sq. ft. to 1427.78 sq. ft. by not making any additional construction in the agreed/approved site plan but shown the area as increased to the extent of 227.78 sq. ft. in the name of Super Built-Up area. The OPs charged the amount of Rs.2,27,780/- plus service tax i.e. Rs.5865/- total Rs.2,33,645/- in the name of Super Built Up Area.  The complainants filed a complaint No. 175 of 2013 before the District Forum and the same was dismissed as withdrawn and afforded opportunity to the complainants for filing fresh complaint on the same cause of action vide its order dated 03.04.2014.  Hence, the complainants filed complaint before the District Forum. 

6.     Vide Order dated 25.10.2016, in the CC No. 145/2014,  the District Forum has dismissed the complaint being devoid of any merits.

7.         Aggrieved by the said Order dated 25.10.2016 of District Forum, Petitioners appealed in State Commission and the State Commission vide order dated 26.09.2017 in FA No. 1111/2016 has dismissed the appeal and affirmed the findings of the District Forum.

8.         Petitioners have challenged the said Order dated 26.09.2017 of the State Commission mainly on following grounds:

1. The impugned order had been passed ignoring the settled legal position and on the basis of void contract, beyond which the Fora below could easily look into, thus the order is bad in facts and law. The State Commission has omitted to observe that the Respondents have increased the Super Built up Area unilaterally when there is no such word either in the allotment letter or in the agreement entered into with the Appellants.The charges on the basis of Super Built Up area which includes lobby, staircase, lifts, shafts, security rooms, conference room, other amenities like swimming pool, indoor games room, Club, etc. could not be charged at market rates at the time of registry, these in fact could not be charged at all, all these circumstances show unfair trade practices on the part of OPs and complainants had no option except to pay the same. The State Commission has omitted to observe that there was no such term agreed in the agreement nor there is any such term mentioned in the agreement or in the Final Call Notice, however it is pertinent to mention that the term that is mentioned is that it is factually Built up Area not Super Built up Area by flouting the rules and regulations, guidelines and also terms and conditions of Allotment/ Agreement, exceeding their jurisdiction.

2. The State Commission has omitted to take into consideration full facts. /documents of the case placed on records by the Aappellants in depth to show that the Respondents are negligent and committed deficiency in services. The State Commission has not taken into consideration the fact that the Respondents had increased the alleged Super Built-UP Area from 1200 sq. ft. to 1427.78 sq. ft. without making any additional construction in the agreed/approved Building/site plan but in fact to cheat the complainants, the respondents fraudulently shown the area as increased to the extent of 227.78 sq. ft. in the name of Super Built-Up Area taking the plea that Guidelines regarding the measurements of the Super Built-up Area has been Changed/Revised, according to 'New Sale Area Guidelines' in respect of 'Sit Out Area' the measurement taken @ 50%, for Balcony @100% and for staircase /Mumty@ 100%, though it is covered with AC Sheet not by concrete lentil whereas the Respondents were bound as per allotment/ agreement to give 1200 sq. ft. Built-up/Covered Area approximately as per Old Sale Area Guidelines' measuring Ground Floor Plan - 1066 sq. ft. Mumty (@50%) -72 Sq.Ft., Balcony @ 50%)-62 Sq.Ft. and no charges for Sit Out Area shown in it. 

3. The State Commission has omitted to take into consideration the fact that the Revision /Change of Super Built-up Area as per New Sale Area Guidelines' instead of agreed Old Sale Area Guidelines' without executing the fresh Agreement between the both parties is not tenable in the eyes of law and is bad in law. It is just a Revision/Increase of the Basic Price of the Villa in question which is not permissible as per Terms and Conditions of the Allotment/Agreement as the appellants have purchased the Villa of 1200 Sq. ft. Built-up/Covered Area approximately at lump sum/fixed price of Rs.29,75,000/- as per terms and conditions of the agreement dated 27.08.2008 and both the parties are bound by the same.

4. The State Commission has omitted to observe that while submitting the building plan of Villas to the Govt. agency for approval and starting the construction of the same in the line of F-Block-2742 (A to Q) and 2743 (A to Q) 19+19 38 Villas, the Respondents were well aware that these Villas have 20 Sq.Mts. extra Land in addition to 239 Sq. Yds.(200 SQ. Mts.), they could have demanded the price of 20 Sq. Mtrs. additional piece of plot extra to 239Sq. Yards (i.e. 220 Sq.Meters) at the rates prevailing at that time and that too with the schedule of Payment instalments Plan, which would have been cheaper in rates and easy and comfortable to pay by the complainants, but the Respondents knowingly and deliberately did not do so with some malafide intention as the rates of plots were much cheaper than that of prevailing rates at the time of Final Call Letter dated 06.06.2011. The rates of plots at the time of start of construction were about Rs. 6500/6600 per sq. yard in F-Block, whereas, the Respondents have now charged about Rs.8500/8550 per sq. yards (i.e. Rs. 10,285/- per sq. meter) that is about Rs.2000/- per square yard extra from the appellants. In this way, the Complainants have paid more than Rs. 48,000/- i.e. Rs.2000/- per sq. yards for 24 sq. yards (20 sq. meters) to the Respondents, but theState Commission did not go in to the depth of the case while passing the impugned order.

(v) The State Commission has not taken into consideration the fact that the Respondents have demanded Rs.2,33,645.00 on account of revision of measurement as per New Sale Area Guidelines' despite the fact that it is Revision of Basic Price already fixed as 29,75,000/- in lump sum, the consent of the appellants were never taken and the Respondents have not carried out any additional construction. The State Commission has failed to consider that according to the terms and conditions of the agreement the Respondents cannot alter the terms and conditions of the Builders-Buyers Agreement without the consent of both the parties. The State Commission has failed to consider that cleverly the Respondents did not mention the "Super Built up Area" in the Conveyance Deed but mentioned as "Built Up Area" which is on the record of file of the Fora below, but these legal aspects were not even looked into by the State Commission.

6.             The State Commission has errored in observing that due to increase in the Plot Area (20 meters) the Built up Area also increased accordingly. But it is not so, the Built up Area is the same. The piece of 20 Sq.Mts plot was given in Rear/Back side of the House which is left vacant & shown as Rear Lawn in the Approved Plan. There is no Extra Land of 20 Sq.Mts (24 Sq. Yds) in the villa of referred case of Uman Paul Singh & Meetu Arora. But the Built up Area is the same in 239 Sq. Yds.Plot as ours in 263 Sq. Yds. (239+ 24 Sq. Yds) Or (200+20 Sq.Mts.). The State Commission has failed to consider the fact that Appellants had to pay the Electricity Charges and Maintenance Charges for the above said period i.e. from September, 2011 to February, 2012 without using the same. The villa in question along with other such villas, has very week plaster. In fact, there were so many defects found in the Villa like cracks in ceilings, in rooms/roofs, cracks in walls/parapets etc. due to low quality of material and low ratio of cement used in construction of the Villas , very cheap wooden doors fitted, local quality of C.P. Fittings fixed whereas the equivalent range to LAURET/JAGAUR/ESS ESS/GEM was assured in the agreement. These facts have also not been looked into while passing the impugned judgement by the State Commission. 

9.         Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

9.1       In addition to the averments under the grounds (para 8), the Petitioners contended that it is common unfair practice, to charge consumer on the basis of the super built-up area which is actually called saleable area, though law does not permit the same.  It is also contended that it is settled Legal position, that Contract of Builder sale, which results in passing Title possession and ownership to consumer based on built up area and the charges quoted at the time of contract include all the charges related to Super Area and no separate charges in the name of Super area can be included or charges from consumer.  In support of their contention Petitioners have relied upon the judgment of this Commission in Vijay Kumar Madan, Prop. Madan Builders Vs. Bodh Raj Chandna, FA No. 50 of 1994, decided on 11.04.1997 (Relevant para 1 & 2). It is further contended that the RP is based on settled legal position that there cannot be estoppels against Law, even by consent the parties cannot override Law, law will prevail and even if there is any contractual clause, which violates law, or override provisions of law, law will prevail.  The petitioners relied upon the following judgments and their relevant paras in support of their contentions:

i)         Ripu Daman Haryal & Anr. Vs. Miss Geeta Chopra & Anr. ILR (2011) V Delhi 406 (relevant para 44).

ii)        Faqir Chand and Ors. Vs. Ram Rattan Bhanot and Ors. AIR 1973 SC 921 (relevant para 11)

It is further contended that the Respondents admitted that they have charges Super Area Charges as per prevailing Industry norms.  Agreement shows that price had been fixed for 200 sq.mts. having built up area of 1200 sq. ft. , the price in built up area includes all possible super area charges.  Holding charges were required  to be paid, if possession is not taken within 60 days.  Demand of 1427 Sq.Ft. built area contrary to original 1200 sq.ft. area , thus for 227 sq.ft., extra money had been charges.  It is also contended that for a similar placed house in the same society, different and contrary findings have been given by same District & State Commission in an exactly similar placed case and the said orders are placed at Page 120 and Page 124.  The impugned order findings are contrary to settled law and contrary to similarly placed case.  The case decided by the District Forum, Panipat  in Uman Paul Singh Vs. Ansal Properties & Infrastructure Ltd. – Complaint No. 44 of 2012, decided on 29.08.2013. The case decided by the State Commission, Haryana in Uman Pal Singh & Meetu Arora Vs. Ansal Properties & Infrastructure Ltd. -First Appeal No. 725 of 2013, decided on 28.09.2016.

9.2       On the other hand it is contended by the Respondent that the complainant is barred to acquiescence and estoppel.  The complaint is speculative to make some additional gain.  The Respondent has contended that it has been held by the Hon’ble Supreme Court in the CA 432 of 2022 titled as Sunil Kumar Maity Vs. State Bank of India that the Revisional Jurisdiction of National Commission  are extremely  limited and has to be exercised only in case as contemplated within its parameters where it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise or its jurisdiction illegally or with material irregularity.  Both the fora below have given concurrent findings.  The petitioners seek refund of enhanced cost of the land of Rs. 29,532/- for the additional land allotted/sold to them and Rs.2,27,780 for the additional super area of the Villa. Rs. 2,00,000/- has been claimed on account of mental agony without averment. The Complaint was filed much after the payment made against the additional land and additional built up area and registration of the conveyance deed of the built-up house. The conveyance deed of the Villa was executed on 04.08.2011 whereas the first Complaint No. 175 of 2013 was filed in 2013 and later on which was withdrawn and another complaint was filed in 2014. There has been no explanation as to delay in filing of complaint after more than 2 years of execution of the conveyance deed for the Villa. The payment against the additional land and additional super area was made without any demur and protest. The demand against the increased super area was made as per the agreed terms and conditions. The Agreement clearly provided that the plot area as well as the built-up area are tentative and can be increased at the time of offer of possession.

10.       No doubt in this case there are concurrent findings of both the Fora below against the Petitioner herein.  But the Petitioner/Complainant has specifically contended that the OP have wrongly charged them in the name of enhanced super area, which is not there, contending that demand of 1427 sq.ft. build up area is contrary to original 1200 sq.ft., thus for 227 sq.ft. extra money has been charged.  Complainant has also contended that for a similarly placed house in the same society, different and contrary findings have been given by the same District Forum and State Commission  in an exactly similarly placed case.  In this regard relevant portions of orders of State Commission are reproduced below:-

“13.         Now main controversy remains regarding claim of the complainants regarding refund of an amount of Rs.2,33,645/- on account of increase in super built up area. Version of the complainant is that in fact there is an increase in super built up area and the super built up area is the same as mentioned in the agreement and the complainants were not liable to pay the above mentioned amount of Rs.2,33,645/-. On the other side, version of the opposite parties is that due to increase in plot area, the super built up area was also increased accordingly. The complainants have placed on the file copy of an order passed by the learned District Forum on August 29th, 2013 while deciding Complaint No.44 of 2012 titled as "Uman Paul Singh and another vs. Ansal Properties & Infrastructure Limited and another". Facts of that case are similar to the facts of the case in hand. In that case, the opposite parties were directed to 'refund an amount of Rs.2,27,780/- already paid by the allottees. First Appeal No. 725 dated 11.10.2013 was filed against that order by the opposite parties, before the State Commission. In that case, findings were given that the increased super built up area was 44.3 sq. ft. and not 227.78 sq. ft. Findings were given that the opposite parties shall refund the excess amount received from the complainant considering total increase in super built up area as 44.3 sq. ft. So, it is clear that findings given by the learned District Forum in that case were not affirmed by the State Commission. Moreover, State Commission has given findings regarding increase in super built up area of the Villa on the basis of the report called from the Town and Country Planning Department after measurement of the super built up area. In this case, the complainants did not prefer to get the super built up area measured again through Town and Country Planning Department or by any other competent authority. During the course of arguments, learned counsel for the opposite parties also argued that in fact area covered under balcony, mumty, lift and staircase etc. is also included in the super built up area of a flat or a Villa.

14.            Keeping in mind all these circumstances, on the basis of the record on the file, certainly findings cannot be given that super built up area of the Villa is less than 1427.78 sq. ft. In these circumstances, the payment of an amount of Rs.2,33,645/- to the opposite parties by the complainant including service tax on account of increase in super built up area was justified. The complainants are not entitled for refund of the above mentioned amount.”

11.       We have carefully gone through the orders of State Commission dated 26.09.2017 and District Forum dated 25.10.2016 in the present case, other relevant records, as well as orders of District Forum dated 29.08.2013 in CC 44 of 2012 in Uman Paul Singh & Anr. Vs. Ansal Properties & Infrastructure Ltd. & Anr., which pertains to same project of the OP in the present case and the corresponding orders of the State Commission dated 28.09.2016 in FA 725 of 2013 in Appeal filed by Ansal Properties and Infrastructure Ltd. against the complainant Uman Paul Singh in the said CC 44 of 2012.  In this CC, the District Forum has, in similar circumstances, allowed the complaint with directions to OP to refund a sum of Rs.2,27,780/- with interest and State Commission in Appeal filed by OP has held that Complainants have to pay for increased area of 44.3 sq.ft. and not 227.78 sq.ft. as charged by the builder.  So the OP was directed to charge for the increased area of 44.3 sq. ft. only.

12.       In view of the foregoing, we see some merit in the contentions of the complainant-Petitioner and are of the considered view that  his case deserves to be reconsidered by the District Forum/State Commission in the light of orders of District Forum and State Commission in CC 44 of 2012 and FA 725 of 2013 respectively, referred to above.  Accordingly, the impugned order dated 26.09.2017 of State Commission in FA 1111 of 2016 and order of District Forum dated 25.10.2016 in CC 145/2014 are hereby set aside and matter is remanded back to the District Forum for fresh disposal on merits in the light of its orders dated 29.08.2013 in CC 44/201, after hearing both sides.  Both the parties to appear before the District Forum on 20.06.2024.  Thereafter, the District Forum would be free to fix further dates of hearing as per its convenience.  However, District Forum should dispose off the matter within a maximum of three months from the date of 1st appearance by both parties before it.  Revision Petition is disposed off accordingly.

13.       The pending IAs in the case, if any, also stand disposed off.