JUSTICE V.K.JAIN (ORAL) Condonation of delay Heard. With the consent of the learned counsel for the complainants, the delay of 350 days in filing the Revision Petition Nos. 1524 to 1568 of 2019 is condoned subject to payment of Rs.10,000/- as cost in each revision petition to the complainants, within two weeks from today. Revision Petitions 2. M/s Milestone Enterprise hereinafter referred to as the Builder, which is a partnership firm advertised for sale of residential apartments in a project, namely, Swastic Milestone which it proposed to construct in District Surat of Gujarat. The complainants in these matters booked residential apartments in the aforesaid project and possession of the apartments has already been delivered to them. The sale deeds in their favour were also executed. After taking possession of the apartments and execution of the sale deeds in their favour, they approached the concerned District Forum by way of separate consumer complaints alleging several deficiencies on the part of the Builder in rendering services to them. The deficiencies alleged by the complainants included the following:- The actual carpet area of each flat was only 1006 sq.ft. though it was stated by the Builder to be 1020 sq.ft. The Builder was required to provide parking for one car and two scooters to each of the allottees but the parking provided by it wasgrossly inadequate. The Builder was required to provide facilities such as steam bath, Jacuzzi bath, gym hall, billiard room and indoor games, table tennis, etc.which it did not provide in the complex. The lift provided by the Builder was of inferior quality. 24 hours sweet water was not provided. The material used on the roads was of inferior quality and the boundary wall was constructed using inferior material and had developed cracks.
3. The complaint was resisted by the Builder which interalia stated in its written version that all the amenities had been provided in the complex and only thereafter the BUC had been issued by the Municipal Corporation. It was also claimed that adequate parking had been provided to the allottees. As regards sport facilities, it was stated in the written version of the Builder that some allottees sought children play area in place of the aforesaid amenities and their request was accepted by the Builder which provided children play area in place of those amenities. It was also claimed that the complex was being maintained by the society of the allottees for last three years and the Builder therefore was not responsible for lack of proper maintenance. 4. The District Forum allowed the consumer complaints with the following directions to the Builder:- (2) The opponent is directed to provide facilities like steam
bath, Jacuzzi bath, jim hall, billiards room, indoor
game, table-tennis, carrom board, chess etc. as per
mentioned in the brochure to the flat holders of 'A/2' and
'A/3' building. Opponent is also directed to provide the
above facilities in the open place of COP shown in the
approved plan. (3) The opponent is directed to initiate proceedings by submitting necessary plan regarding this before the relevant authority within one month from the date of this order and get approval. And has to complete such construction within two years from the date of order. (4) The opponent due to his fault if does not complete the construction within two years then opponent do pay monthly Rs.5,000/- (in words rupees five thousand) to the complainant/flat holder for the delay of each month. (5) The opponent has not provided facilities as per mentioned in the brochure so opponent do pay Rs.7,000/- (in words rupees seven thousand only) to the complainant towards mental shock, harassment, agony etc. (6) The opponent do pay Rs.3,000/- (in words rupees three thousand only) to the complainant towards the cost of this application. (7) The opponent do pay the aforesaid amount to the
complainant out of the court within 30 days. 5. Being aggrieved from the order passed by the District Forum, both the parties approached the concerned State Commission by way of separate appeals. Vide impugned order dated 25.4.2018, the State Commission while maintaining the directions given by the District Forum also directed the Builder to provide sufficient parking space for 50 cars and 25 scooters. Being aggrieved from the order passed by the State Commission, 23 revision petitions have been filed by the complainants whereas 46 revision petitions have been filed by the Builder. 6. The learned counsel for the Builder has made two submissions. His first submission is that the procedure prescribed by this Commission in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. dated 7.10.2016 has not been followed. The second submission of the learned counsel is that since the value of each apartment was more than Rs.20 lakhs, the District Forum did not have pecuniary jurisdiction to entertain the consumer complaint. 7. In my opinion, reliance placed upon Ambrish Kumar Shukla (supra) as regards the procedure is wholly misconceived since the procedure prescribed in respect of a consumer complaint instituted under Section 12(1)(c) of the C.P. Act which is primarily a class action cannot be adopted while deciding an individual consumer complaint filed under Section 12(1)(a) of the C.P. Act. No public notice is required in an individual complaint filed by the consumer. The said public notice or individual notice to all the persons interested in the subject matter of the complaint would be required only when a class action in terms of Section 12(1)(c) of the C.P. Act is initiated by one or more consumers on behalf or for the benefit of all the consumers having the same interest in the subject matter of the consumer complaint. 8. As regards the pecuniary jurisdiction though it can hardly be disputed that in view of the provisions contained in Section 17 of the C.P. Act, the State Commission was the appropriate Forum for entertaining the consumer complaints instituted by the allottees, the value of the services of the Builder hired or availed by each allottee alongwith compensation claimed by him being more than Rs.20 lakhs in each case, it is an admitted position before me that the plea for want of pecuniary jurisdiction was not taken by the Builder before the District Forum. Had the plea been taken at the initial stage, it would have been possible for the District Forum to return the complaints to the concerned complainant with a direction to them to institute the same before the concerned State Commission. That having not been done and the District Forum having proceeded to decide the consumer complaints on merits, it will not be appropriate for this Commission to dismiss the complaints at the revisional stage, for want of pecuniary jurisdiction. A reference in this regard can be made to the decision of the Hon’ble Supreme Court in Civil Appeal No.5699 of 2019 – M/s Treaty Construction & Anr. Vs. M/s Ruby Tower Co-op. Housing Society Ltd. decided on 19.7.2019, which to the extent it is relevant, reads as under:- “7. The contention on the part of appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage.” 9. Coming to the issue of car and scooter parking, a perusal of the Brochure issued by the Builder would show that the Builder had promised one car and two scooters parking to the prospective allottees. The learned counsel for the Builder has drawn my attention to the following note contained in the Brochure and his submission is that depending upon the plans approved by the concerned authorities, the parking facility could change and that they were required to provide the parking only as per the plans approved by the concerned authorities:- “All Plan/Drawing/Facilities/Amenities are subject to approval of respective authorities and may be changed necessary. The discretion remain with developer. All rendering/ floor plants/pictures and maps are artists conception and not actual depiction of building. We the builders have the authority to make the required changes without any prior notice.” 10. In my opinion, the contention cannot be accepted. The plans are prepared by the Builder and are approved by the concerned authorities as per the applicable building byelaws, rules and regulations. No Municipal Authority would ever reduce the parking proposed by a Builder though it may seek enhancement of the parking proposed by him. 11. The case of the Builder is that parking is available on the ground level as well as at underground level which is sufficient for parking one car and two scooters of each allottee. In my opinion, since the Builder proposed to construct 78 apartments in this complex, he ought to have provided 78 earmarked parkings, one for each allottee and such parking should have been sufficient for parking one car and two scooters. That however was not done. Moreover, there is absolutely no evidence of the parking space provided in the complex being sufficient for parking of 78 cars and 156 scooters. Admittedly the Builder in this case did not even plan 78 dedicated parkings sufficient to accommodate one car and two scooters in each parking in the plans got approved by it. Therefore, the Builder has been deficient in rendering services to the complainants, it having not provided one car parking and two scooters parking to each of them. 12. A perusal of the plans shows open parking for some cars and scooters at stilt level but it is sufficient for parking only 28 cars though sufficient scooters can also be parked there. It is evident from its bare perusal that it cannot be sufficient for parking 78 cars and 156 scooters and it is meant only for parking 28 cars. No car parking slot has been ear-marked for a particular allottee. As a result, the allottees of all the 78 flats have to share the parking space meant for 28 cars. Obviously, only some of them will be able to park cars and rest will have to look elsewhere for parking their cars particularly in night time. Though it is suggested by the learned counsel for the Builder that the cars can be parked in the margin area i.e. circulation area meant for movement of the vehicles including emergency vehicles such as fire tenders, the said margin area/circulation area ought not to be used for the parking of cars and cannot be taken as the Builder having provided the required car parking space to the allottee. The Builder was required at least to provide so much space exclusively for parking, which could accommodate at least 78 cars and 156 scooters. That having not been done, the Builder has clearly been deficient in rendering services to the complainants. 13. The next question which arises for consideration is as to what would the appropriate order to be passed in respect of the parking at this stage when the building has already been constructed, the requisite BUC has already been obtained, the possession of the flats has already been given and the sale deeds have already been executed. It is suggested by the complainants that multi-storied car parking can be constructed by the Builder on the ground floor space meant for the parking of the cars. However, that may not be a feasible solution at this stage. The plans for construction of a multi-storied car parking even if submitted by the Builder on direction of this Commission, may be or may not be approved by the concerned municipal authority. Even if the plans are approved, it will take years to construct a multi-storied car parking which by its very nature is a complex construction. Moreover, in that eventuality the allottees will not be able to use even the parking space which they are presently using for parking their cars during the period construction is carried out. In my opinion, in the above-referred facts and circumstances, a direction for payment of adequate compensation for the deficiency in providing the requisite car parking to them would be an appropriate relief to the complainants. The Builder in my opinion should pay a sum of Rs.2 lakh to each of the complainants for the deficiency in providing car parking to them. 14. As far as the sports facilities are concerned, admittedly the Builder was required to provide the facilities such as a club house with steam bath, Jacuzzi bath, gym hall, billiard room and indoor game, table tennis, etc. in the complex constructed by it. No club house has been constructed and the said facilities have not been provided elsewhere in the complex. As noted earlier, the case of the Builder is that on the request of some of the allottees it has converted the area meant for providing club house with the above-referred facilities into play area for the children. There is no evidence or even allegation of the Builder having taken consent of the complainants before converting the area meant for club house into a play area. Even if there was a demand from some of the allottees for providing a play area for the children, the Builder was not entitled to provide such play area at the cost of providing a club house with the above-referred facilities as per the promise made by it at the time of selling the flats to the complainants. Therefore, the Builder must necessarily compensate the complainants for not providing the club house with the above-noted facilities to them. Considering all the facts and circumstances, the Builder should pay Rs.1 lakh as compensation to each allottee for not having provided the club house with steam bath, Jacuzzi bath, gym hall, billiard room and indoor game, table tennis, etc. to them. 15. As regards the carpet area of the flats, both the parties had produced reports from their respective experts. As per the report filed by the complainants, the carpet area of each flat was only 1006 sq.ft. whereas as per the report filed by the Builder, the said area was 1020 sq.ft., the difference being 14 sq.ft in each apartment. In order to resolve the aforesaid issue, it would be necessary to appoint a third agency for measuring the carpet area of the apartments. Since the apartments of identical area have been constructed, it will be sufficient if the carpet area of one of the apartments chosen by the complainants is inspected by the said agency. The Commissioner, Surat Municipality is, therefore, requested to nominate an Executive Engineer to measure the carpet area of one apartment chosen by the complainants. The inspection by the Executive Engineer so nominated by the Commissioner shall be carried out after notice to the parties. The proceedings shall be conducted by him on the spot, got signed from the parties present at the spot and shall be filed with the concerned State Commission. If the area of the said flat is found to be less than 1020 sq.ft., all the complainants shall be entitled to refund of the amount which they paid for the deficient area, calculated on the basis of the price which they had paid to the Builder for the flats sold to them. 16. No other contention is advanced by either party. 17. The revision petitions are therefore, disposed of in terms of the following directions:- The Commissioner, Municipal Corporation, Surat shall nominate an Ex. Engineer of the Corporation to measure the carpet area of one of the apartments chosen by the complainants. If the carpet area of the said flat is found to be less than 1020 sq.ft., all the complainants shall be entitled to proportionate refund of the price which they have paid to the Builder for the apartment. The Builder shall pay Rs.2 lakh as compensation without any interest to each of the complainants for the deficiency in providing parking facility to them. The Builder shall pay Rs.1 lakh as compensation without any interest to each of the complainants for not providing the club house equipped with facilities such as steam bath, Jacuzzi bath, gym hall, billiard room and indoor game, table tennis, etc. The compensation as per the Directions (ii) & (iii) above will be paid within six weeks from today whereas the compensation in terms of Direction (i) shall be paid within six months of Executive Engineer nominated by the Commissioner, Surat Municipal Corporation verifying the carpet area of the apartment chosen by the complainants. If any amount is found payable to the complainants in terms of Direction (i) above, it shall also carry simple interest @ 10% p.a. from the date of institution of the complaint till the date of payment.
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