JUSTICE V.K.JAIN (ORAL) 1. These appeals are directed against the order of the State Commission whereby the consumer complaints filed by the Appellants were disposed of with directions to the Respondent to deliver possession execute the sale deed in favour of the Complainants/ Appellants and pay compensation in terms of the said order to them. While deciding the complaint the State Commission rejected the challenge by the Complainants to the additional demand raised by the Respondent on account of increase in the saleable area of the flats which the Complainants had booked with the Respondents. 2. The Ld.Counsel for the Appellants/ Complainants states on instructions that in these appeals they are restricting their grievance to the alleged increase in the saleable area of the apartment. His submission is that the additional demand on account of the alleged increase in the saleable area of the apartment was made by the developer without providing requisite certificates evidencing the alleged increased in the saleable area of the apartment. The Ld. Counsel for the Respondent submits that as per the agreements executed between the parties the saleable area of the independent floor for the purpose of the calculating the sale price of the independent floor subject matter of the agreement is the sum of the specific area of the said independent floor and its pro-rata interest in the common areas in the said building/ plot. The relevant clause in the agreement reads as under: “Saleable Area for the purpose of calculating the sale price of Said Independent Floor, shall be the sum of the Specific Area of Said Independent Floor and its prorate interest in the Common areas in Said Building/ said plot. Whereas the specific area of Said Independent Floor shall mean entire area enclosed by its periphery walls including area under walls, columns, verandahs/ balconies, cupboards and lofts etc. and half the area of common walls with adjoining Independent Floor which form integral part of Said Independent Floor and Common areas shall mean all such parts/ areas in Said Building which the Allottee of Said Independent Floor shall use by sharing with the other allottees/ occupants in Said Building/ said plot including entrance at ground floor, plumbing shafts, electrical shafts, lift shaft, if provided, staircase including area used for electric meter boxes, letter boxes & call bells, mumty, overhead water tanks and architectural features if provided. It if further clarified that the Saleable Area mentioned in the Agreement is tentative and may undergo changes, the final Saleable Area shall be intimated upon completion of construction of the said building. Inclusion of common areas within or outside the said building for the purpose of calculating Saleable Area does not give any right, title or interest in common areas to the allottee except the right to use Common areas by sharing with the other allottees/ occupants in Said Building/ said plot. The tentative percentage of specific area of Said Independent Floor to saleable area varies 87% to 92% approximately presently, depending on the size of the independent floor, which may under changes till completion of construction of the said building.” The specific area of the independent floor thus has been defined in the agreement and so has been the common area in the said building/ plot. 3. The Ld. Counsel for the developer also submits that the saleable area of each independent floor was got independently verified by the respondent from School of Planning and Architecture, New Delhi and the final saleable area so determined by the School of Planning and Architecture is absolutely inconformity with the final super area of the independent floor conveyed by them to the allottees. It is also pointed out by the Ld. Counsel for the respondent that though the Complainants expressed grievance in respect to the increasing in the saleable area in most of the Consumer Complaints filed by them, in some of the matters no prayer in respect of the saleable area was made by them. It is pointed out by the Ld.Counsel for the Appellants that the directions for withdrawal of the additional demand which included the demand on account of the alleged increase in the saleable area was sought by the concerned Complainants in most of these matters. 4. It was suggested to the Complainants/ Appellants that in order to give a quietus to the dispute, the report of School of Planning and Architecture can be taken on record and the Appellants can be given opportunity to file evidence in rebuttal, before this Commission itself. But, the Ld. Counsel for the Appellants wants determination by the State Commission, on the basis of the evidence of both the parties. 5. For the reasons stated hereinabove, the appeals are disposed of in terms of the following directions. The matters are remitted back to the concerned State Commission for deciding whether there has been any increase in the saleable area of the independent floors allotted to the Complainants/ Appellants or not and if so to what extent the said saleable area has increased. The Respondent shall be entitled to lead evidence in addition to the report of the School of Planning and Architecture if it so wants, to prove the alleged increase in the saleable area of the independent floor. The Appellants/ Complainants shall be entitled to lead evidence to prove that there has been no increase in the saleable area or that the increase was less than for which they were made to pay to the Respondent. The State Commission shall pass fresh order limited to the grievance of the Complainants/ Appellants with respect to the additional demand due to the alleged increase in the saleable area of the independent floor after giving opportunity to the parties to lead evidence in terms of this order. The final order with respect to the grievance of the Complainants against additional demand on account of the alleged increase in the saleable area of the independent floor shall be passed by the State Commission at the earliest possible. While passing appropriate fresh orders the State Commission shall, inter alia, consider the prayers made in the Consumer Complaints. No order as to costs.
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