DR.INDER JIT SINGH, MEMBER

1.         The present Revision Petitions (RPs) has been filed by the Petitioners against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 08.07.2011 of the State Consumer Disputes Redressal Commission,  Andhra Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 1629, 1630 and 1631 of 2008 in which order dated 30.10.2008 of District Consumer Disputes Redressal Forum, Vijayawada (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 01, 02 and 97 of 2008 was challenged, inter alia praying for setting aside the order dated 08.07.2011 of the State Commission.

2.         While the Revision Petitioner (hereinafter also referred to as Opposite Party No. 1) was Respondent No. 1 before the State Commission and Opposite Party-1 before the District Forum and the Respondent No. 1 (hereinafter also referred to as Complainant) was Appellant before the State Commission and Complainant before the District Forum. Respondent No. 2 (hereinafter also referred to as Opposite Party No. 2) was Respondent No. 2 before the State Commission and Opposite Party No. 2 before the District Forum.

3.         Notice was issued to the Respondent(s) on 30.11.2011 in all the Petitions.  Parties filed Written Arguments on 27.08.2021 (Petitioner) and 06.11.2023 (Respondent No. 1) respectively. As the issues involved in all the three RPs are similar and challenge is to common order dated 08.07.2011 of the State Commission, they are taken up together. However, RP/3270/2011 is taken as lead case (FA/1629/2008 before the State Commission). 

4.         Brief facts of the case in RP/3270/2011, as presented by the Petitioner and as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -

            (i)        On 21.11.2005, Respondent No. 1/Complainant entered into a construction agreement with Petitioner/Opposite Party No. 1, a builder operating under the name Vijayalakshmi Towers-II. After thoroughly reviewing and agreeing to the construction terms, conditions and amenities detailed in the agreement, Respondent No. 1 signed the agreement for Flat No. GF-8 in Vijayalakshmi Towers-II.

            (ii)       Respondent No. 1 visited the construction site multiple times during construction, as per clause 7 of the agreement, and was satisfied with the progress and quality of work. On 15.12.2005, a sale deed was executed for Flat No. GF-8, which included a plinth area of 780 sq. ft. including scooter parking. Respondent No. 1 took possession of the flat following the petitioner’s completion and handing over letter and has been residing there since. An appreciation letter from the Vijayalakshmi Towers-II Residents Welfare Association, dated 09.08.2007, shows satisfaction with the construction, amenities and quality of work done.

            (iii)     However, on 10.12.2007, Respondent No. 1 issued a legal notice alleging deficiencies such as defects, reduced plinth area, and not providing car parking, demanding Rs.50,000/- as compensation. The petitioner responded on 18.12.2007, contesting these claims. Dissatisfied, Respondent No. 1 filed a complaint on 20.12.2007, with the District Consumer Forum-II seeking Rs.3,25,075/- in compensation for alleged service shortcomings.

5.         Vide Order dated 30.10.2008, in the CC no. 01 of 2008 the District Commission ordered that the complaint lacks any merits and dismissed the complaint.

6.         Aggrieved by the said Order dated 30.10.2008 of District Commission, Complainant/R-1 appealed in State Commission and the State Commission vide order dated 08.07.2011 in FA No. 1629 of 2008 has allowed the appeal and passed the following order:

“In the result this appeal is allowed and order of the District Forum is set aside and consequently the complaint is allowed in part directing opposite parties no. 1 and 2 to pay to the complainant an amount of Rs.65,000/- towards deficit area and Rs.75,000/- as compensation towards non provision of car parking area together with compensation of Rs.20,000/- and costs of Rs.5000/-. Time for compliance four weeks.”

7.         Petitioner(s) have challenged the said Order dated 08.07.2011 of the State Commission inter alia on following grounds:

1. State Commission failed to appreciate the factual aspects, the documents adduced by both the parties, ignoring in scrutinizing the very crucial documents i.e. sale deed (Ex. A1) and agreement (Ex. A2), found that there was deficiency in service on the part of the petitioner herein.

2. State Commission failed to consider that the Respondent No. 1 (Complainant) signed on two crucial documents i.e. Sale deed and agreement for construction only after complete satisfaction with terms, conditions, specifications and amenities mentioned thereof.

3. State Commission failed to consider that the Respondent No. 1 herein filed a complaint without any proof or reason after lapse of 18 months from the date of the occupancy of the flat GF 8.

4. State Commission ought to have considered that there is no car parking mentioned in the sale deed (Ex. A1) but only mentioned parking area of 30 Sq. ft. of common area for scooter parking and the Respondent No. 1 herein had not paid any separate amount for car parking.

5. State Commission failed to consider that clause 11 of the agreement clearly envisages that once possession of the flat is delivered, the purchaser shall have no claim against the promoter in respect of any defect in any item of work of construction, not due to any default on the part of the promoter.

8.         Heard learned 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.

            8.1       In addition to the averments made under the grounds (para 7), the petitioner contended that in regard to the car parking, the respondent has bargained the flat and restricted his parking space to scooter, that’s the reason the sale deed does not disclose car parking and is mentioned only parking.

            8.2       With regard to the plinth area, as per the sale deed the promised plinth area was 780 sq. ft. whereas the Petitioner has provided more plinth area than promised which is evident from the BPS plan filed by the petitioner in which it was specifically mentioned as 775.50 Sq. ft. excluding North side 2.16 mtrs wide balcony. With regard to the deviations the petitioners went for BPS and paid the penal fees and hence the complainant can’t say that the construction is illegal.

            8.3       On the other hand Respondent-1 contended that as per Ex:A-1, Sale Deed, the Petitioner had assured to provide 780 Sq. ft. plus 30 Sq. ft. towards common area. However, the Petitioner had actually provided only 711.51 Sq. ft., which factum is irrefutably reflective in Ex:A-17, which is the BPS approved plan for the GF 8. Petitioner in his chief affidavit made contradictory averments about the plinth area given to the Respondent by averring that the Respondent is in occupation of 868 Sq. ft. and Petitioner had stated that the Complainant is in occupation of 830 Sq. ft.

            8.4       The Ex:A-17 clearly shows the exact dimensions of the apartment, disclosing in unequivocal terms that there is deficit of 68 Sq. ft. in the assured plinth area made by the Petitioner.

8.5       As per BPS Plan the net carpet area is 611.54 Sq. ft. while at the ground level it is only 602.40 Sq. ft. and the plinth area as per BPS Plan is 722.71 Sq. ft. while at the existing structure shows only 696.48 Sq. ft. which is exclusive of balcony area. The Petitioner has provided a deficit of more than 70 Sq. ft. in plinth area than what he had actually promised.

8.6       The Petitioner did not specify the nature of parking though the provision of the Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987 casts a mandatory duty on the promoter to explicitly provide nature and type of parking facility.

9.         The basic dispute in the present case centers around two issues (i) provision of less plinth area (697 Sq. ft. as against 780 promised for GF 8 flat in RP/3270/2011) and non-provision of car parking and several other amenities. Complainant also alleged use of sub-standard items and deviation from approved plan and construction of three additional flats by the OPs. The OP-1 contended that Complainant is in occupation of about 869 sq. ft. of plinth area, including balcony and washing area, which is in his exclusive possession and does not come in the common area, 30 sq. ft. common areas was given for the purpose of scooter parking and no amount was paid by the Complainant towards car parking. The State Commission allowed the appeal, set aside the order of the District Forum dismissing the complaint, and allowed the complaint in part, directing OP-1 & 2 to pay to the Complainant, an amount of Rs.65,000/- towards deficient area and Rs.75,000/- as compensation towards non provision of car parking area together with compensation of Rs.20,000/- and cost of Rs.5,000/-. Extract of relevant paras of the orders of the State Commission (in FA/1629/2008 corresponds to RP/3270/2011) is reproduced below:

“The facts not in dispute are that one K.P.Ravindran represented by the complainant herein purchased flat no.GF.8. Ex.A1 is dt.15.12.05 and is a Sale Deed executed for an amount of Rs.3,85,000/-. In this sale deed the plinth area is mentioned as 780 sq.ft. and states that common area is 30 sq. ft. and parking would also be provided. Ex.A2 is the Agreement for Construction dt.21.11.2005 wherein the amount is mentioned as Rs.6,80,000/- and under sanitary and water works in Clause 7 it is stated as follows:

"7. Over head tank shall be provided. Builders shall apply to Water Works Department for municipal water connection, but the responsibility for sanction, deposits and cost of expending the work shall be borne by the flat owners"

It is the case of the complainant that ISI electrical wiring was not used and that the sewerage system is improper and that proper drinking water facility was not provided by the builder. We observe from the record that neither the Sale Deed nor the Agreement specify that the builder should provide the drinking water facility. From the aforementioned clause it is clear that only application for water works will be made by the builder and that the responsibility for sanctioning and getting it executed rests on the flat owners. Therefore this liability cannot be fastened on the builder. The party in person contended that the complainant was promised all these facilities and more in the brochure. Even in the brochure under the head of 'Water Supply' only borewell with water head tank and municipal drinking water point in the kitchen and wash place were promised which the builder had provided and therefore no deficiency of service can be attributed to the builder with respect to these aspects. With respect to non-usage of ISI wiring, there is no documentary evidence or expert opinion that substantiates their contention that it is defective.

With respect to illegal construction of three additional flats the opposite parties submitted that they have paid building regularization fee and the penalty charges and therefore the deviations cannot be said to be illegal. As against this, the party in person contended that because of the Illegal construction the complainant is deprived of his share in the common areas and also in the undivided share in the total land area and the complainant has to pay an amount Rs.10,000/-. under BPS because of the default of opposite party no.1 to adhere to the approved plan. Ex.A18 is dt.28.6.2010 and is a pay order for Rs.5000/- issued by Sri K.P.Ravindran to the Vice Chairman, VGTM, VUDA. We are of the considered view that once the regularization has been completed this Commission has no jurisdiction to go into the aspects of refund of the amounts prayed for.

Now we address ourselves to the contention of the party in person that opposite party no.1 has provided less plinth area. It is the contention of the complainant that as per Ex.A1 Sale Deed 780 sq.ft. + 30 sq.ft. towards common areas was promised, but the opposite party provided only 711.59 sq.ft. as stated in his additional written arguments, and which is also reflected in Ex.A17 which is the BPS approved plan for the said apartment Vijayalakshmi Towers-II. It is pertinent to note that opposite party no.2 in his Chief Affidavit made contradictory statements about the plinth area given to the complainant. In page 3 he states that the complainant is in occupation of 869 sq.ft. and on page 5 he states that the complainant is in occupation of 830 sq.ft. Ex.A17 approved plan shows the exact dimensions of the apartment which the complainant also mentioned in his written arguments and read along with the Sale Deed it is evident that there is deficit of 68 sq.ft. plinth area. Based on the evidence on record l.e. Exs.A1 and A2 we are of the considered view that the purchaser is entitled for an amount of Rs.65,000/- taking into consideration the total sale consideration and the deficit area.

Now we address ourselves to non provision of car parking. The brochure is silent about the parking facilities, whereas the sale deeds specifies only ‘parking’ but does not clearly state whether it is car parking or otherwise. Section 3 of THE ANDHRA PRADESH APARTMENTS (PROMOTION OF CONSTRUCTION AND OWNERSHIP) ACT, 1987 defines promoter as follows:

(m). "Promoter" means a person who has already constructed or constructs a building of apartments for the purpose of selling some or all of them to other persons"

In the instant case opposite parties fall under the definition of ‘Promoters’. Now we address ourselves to whether the promoters have adhered to the definition of 'common areas' as specified under Section 3(d) of the Act which is as follows:

"(d)Common areas and facilities" unless otherwise provided in the declaration, means:

(i) the land on which the building is located;

(ii) foundation, columns, girders, beams, supporters, main walls, roofs including terraces, halls, corridors, stairs stairways, fire-escapes and entrances and exits of the building;

(iii) basements, cellars, yards, gardens, parking areas, children's playground and storage spaces;

(iv) the premises for the lodging of janitors or caretakers or persons employed for the management of the property;

(v) installations of general services, such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning and incinerating;

(vi) Elevators, tanks, wells and bore-wells, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;

(vii) such other community and commercial facilities as may be provided for in the building plan and declaration;

(viii) all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use"

It is clear that parking areas under Section 3(d) (iii) specifies that parking areas should be specifically mentioned whereas in the instant case opposite parties ambiguously stated 'parking' but did not specify the exact area in the Sale Deed or in the agreement which they ought to have done as per Section 3(d) (iii) of the A.P.Apartments (Promotion of Construction and Ownership) Act, 1987. Moreover Ex.A17 which is the approved plan shows parking area as 15.50 x 42.92 for Vijayalakshmi Towers-II in the stilt floor plan. We are of the considered view that the complainant is entitled to the monetary loss of Rs.75,000/- for non provision of car parking area. It is unfortunate that the complainant herein did not choose to amend the prayer either in the District Forum or at the appellate stage asking for "Provision of Car Parking Area'. As the main prayer in the original C.C. seeks only monetary loss/compensation towards non provision of car parking area, we are of the considered view that only compensation of Rs.75,000/- can be awarded. It is also unfortunate that the directions sought for by the complainant in his arguments herein with respect to fire fighting and earthquake resistance amenities, are not reflected in the main prayer of the original C.C. In the absence of these two aspects in the main prayer we are not inclined to award any such direction to the opposite parties. However it is open to the complainant to approach the concerned authorities for the provision of fire fighting equipment, if so advised.”

10.       In RP/3271/2011, the Complainant had alleged a deficit of plinth area by 38.39 sq. ft. and in RP/3272/2011, the Complainant had alleged a deficit of plinth area by more than 10 sq. ft. orders of the State Commission in these two cases are also reproduced below:

“F.A.No.1630/08 (RP/3271/2011):

Aggrieved by the order in C.C.No.2/2008, the complainant preferred this appeal. Since the facts are similar to F.A.No.1629/08 and opposite parties are also common, this appeal is being disposed of by this common order.

The complainant in the original complaint submitted that there is deficit of 38.39 sq.ft. and that a consideration of Rs.9,05,000/- has been paid towards full sale consideration. Even in the Chief Affidavit filed before the District Forum the complainant sought for monetary loss of Rs.45,654/- for not providing the assured plinth area. Taking into consideration the amounts paid and the plinth area we are of the view that the complainant/purchaser is entitled to Rs.40,000/- towards deficit plinth area. It is pertinent to note that the original prayer does not seek for provision of car parking area but only for monetary loss/compensation for non provision of the same.

In the result this appeal is allowed and order of the District Forum is set aside and consequently the complaint is allowed in part directing opposite parties to pay an amount of Rs.40,000/- towards deficit plinth area and Rs.75,000/- as compensation towards non-provision of car parking area together with compensation of Rs.20,000/- for the mental agony and inconvenience and costs of Rs.5000/-. Time for compliance four weeks.

F.A.No.1631/08 (RP/3272/2011):

Aggrieved by the order in C.C.No.97/2008, the complainant preferred this appeal. Since the facts are similar to F.A.No.1629/08 and opposite parties are also common, this appeal is being disposed of by this common order. In this complaint the prayer includes the provision of car parking facility and the documentation evidences that the purchaser of flat GF.7 is a physically handicapped person. It is pertinent to note that the record shows that the opposite parties in page 7 of Ex.A1 Sale Deed have clearly stated that 'Special Car Parking' would be provided to the purchaser, but in the instant case they have failed to do so which clearly constitutes deficiency in service for which the complainant is entitled to a compensation of Rs.25,000/- addition to the provision of car parking area as promised in the Sale Deed. This amount of Rs.25,000/- is being awarded as the Sale Deed is dated 8.9.2005 and till date the purchaser who is a physically handicapped person had to suffer severe inconvenience and mental agony for non-provision of the promised 'special car parking.' The complainant is also entitled to Rs.40,000/- for the deficit in the plinth area. The other reliefs prayed like outer wall thickness, incomplete tiles work, wall putty, ducts are disallowed in the absence of any documentary evidence filed by the complainant in support of his contention that such works were left incomplete. 

In the result this appeal is allowed and order of the District Forum is set aside and consequently the complaint is allowed in part directing opp.parties 1 and 2 to pay Rs.40,000/-towards deficit area and provide car parking as stipulated in the Sale Deed together with compensation of Rs.25,000/- for the mental agony suffered by the physically handicapped purchaser. We also award costs of Rs.5000/-. Time for compliance four weeks.”

11.       Perusal of the schedule to sale deed dated 15.02.2005 in RP/3270/2011 shows that an area of 780 sq. ft. along with ‘parking’ has been sold. Annexures also states the plinth area of the construction as 780 sq. ft. (semi finished) and common area as 30 sq. ft. Vide orders dated 27.03.2023 read with order dated 04.07.2023, this Commission appointed Mr. ASN Raghu Kiran as local Commissioner for submitting a report on dispute regarding car parking and plinth area as shown in the sale deed as well as Building Penalization scheme (BPS) Plan. In pursuance to these orders the local Commissioner submitted a detailed technical report in RP No. 3270, 3271 and 3272 of 2008 on 19.08.2023. Extract of report of the local Commissioner is reproduced below. Along with the report layout plans of the three units have also been submitted.

“REPORT ON THE EXECUTION OF THE WARRANT IN DUE COMPLIANCE WITH THE ORDERS OF HON'BLE NCDRC

In pursuance of the orders passed by the Hon'ble National Consumers Disputes Redressal Commission, New Delhi, dated 27.02.2023, I had executed the warrant on 11^th July 2023 in the presence of the petitioner and his authorised representative and the respondents. Accordingly, I had prepared a work plan for the purpose of taking measurements of each flat for ascertaining the exact net carpet area and further, to find out any discrepancy and difference in between the area shown in the BPS Plan and the existing structures at the ground level. I am hereunder specifying the details of measurements of each flat along with the marked discrepancy and difference noted by me in the presence of the petitioner as well as his authorised representative cum an expert, who is a retired municipal engineer and the respondents.

FLAT NO: 4 BELONGING TO SMT. P. LAKSHMI ΒΑΙ

1. In regard to Flat No. 4, belonging to Smt. P Lakshmi Bai, the total area as per the BPS plan was shown as 904.04 Sq. Ft., while the existing structure at the ground level contains an area of 843.96 Sq. Ft. Further, the total net carpet area was shown as 615. Sq.Ft., while the available net carpet area is only 590.84 Sq.Ft. and the discrepancies were also found in the plinth area, balcony area and common area along with parking area and full and complete details are shown in the certified copy of the sketch filed herewith to buttress these facts.

2. FLAT NO: 7 BELONGING TO SMT. K. V. V. K DURGA RANI,

In regard to Flat No. 7, belonging to Smt. K. V. V. K Durga Rani, the total area as per the BPS plan was shown as 814.78 Sq.Ft., while the existing structure contains a total area of 845.71 Sq.Ft. Further, the total net carpet area was shown in the BPS plan as 611.57 Sq.Ft., while the existing structure contained only 600.81 sq.ft. Similarly, the total plinth area as per the BPS plan was 722.78 Sq.Ft. while the total plinth area at ground area is only 691.33 Sq. Ft., Thus, there is excess of around 30 Sq.ft over the BPS plan, but there is deficit in the net carpet area as well as in parking area, making the parking area inconvenient for parking a car. The plinth area and full and complete details are shown in the certified copy of the sketch filed herewith.

3. FLAT NO: 8 BELONGING TO SHRI. K P RAVINDARN

In regard to Flat No. 8, belonging to SHRI. K P RAVINDARN, the total plinth area shown as per BPS plan was 932.13 Sq.Ft., while the total area available at the ground level is 863.54 Sq. Ft. Thus, there is deficit of around 68 Sq.Ft., Similarly, the net carpet area as per BPS plan was 611.54 Sq.Ft., while the total net carpet area at the ground level is 602.40 Sq.Ft., and likewise the total plinth area as per the BPS plan was 722.71Sq.Ft., while the total plinth area at the ground level is 695.48 Sq.Ft. Similarly, the total balcony area as per the BPS plan was 179. 42 Sq. Ft, while the actually balcony area is 168.06 Sq.Ft., and full and complete details are shown in the certified copy of the sketch filed herewith.

I have carried out my work plan on the same day and, after preparing the report I am herewith sending the detailed copy of the report to the Hon'ble NCDRC by way of due compliance along with Annexures.”

12.       From the perusal of report of Local Commissioner, and other facts and circumstances of the case, it is clear that allegations of deficient area and issues relating to parking space are correct. This shows that State Commission, after appreciating the facts and evidence before it, correctly gave its findings on deficiency in area and issues pertaining to parking in all the three cases. State Commission has given a well-reasoned orders and we are in agreement with its observations and findings. There is no illegality or material irregularity or jurisdictional error in the orders of the State Commission, hence the same is upheld. Accordingly, all the three RPs, being devoid of merits, are dismissed.

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