For the Appellant             Mr Vedant Kumar Mund, Proxy Counsel with

                                     Authority Letter

For the Respondent          Mr Vikas Jain, Advocate along with

                                     Respondent – IN PERSON        

ORDER

1.      This appeal under section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) seeks a review of the order dated 26.04.2022 of the State Consumer Dispute Redressal Commission, Delhi (in short, the ‘State Commission’) in complaint case no. 1108/2018 partly allowing the complaint and directing:

(i)     the appellant/opposite party to not charge the increased cost of Rs 4,07,501/- plus service tax and interest of Rs 67,833/- from the respondent/complainant towards increased super area of the flat;

(ii)    the respondent/complainant to pay the remaining balance after deducting the excess amount charged in lieu of increased super area within 60 days from the date of the order;

(iii)    the appellant/opposite party to hand over physical, vacant and peaceful possession of the flat complete in all respects as per Agreement dated 18.09.2012 within 30 days from the receipt of the balance payment from the respondent/complainant;

(iv)   pay the appellant/complainant Rs 1,00,000/- for mental agony and harassment.

This order is challenged by the appellant in this First Appeal praying to:

1. allow the present Appeal
2. set aside the final judgment and order dated 26.04.2022 in CC No. 1108 of 2018 by the State Commission;
3. pass such other order(s) as deemed fit and proper.

2.      Heard the learned counsels for the parties and perused the records. 3.         The relevant facts of the case, in brief, are that the appellant allotted the respondent a residential independent floor in its project “Omaxe Chandigarh Extension” at Mullanpur LPA (GMADA), District SAS Nagar, Punjab admeasuring approximately 1500 sq ft on 12.09.2012. As per Clause 3 of the Allotment Letter executed between the parties setting out the terms and conditions, the respondent agreed that plans, designs and specifications of the unit were tentative and there may be changes/alterations to the plans involving change in location, dimension, area or number etc. of the unit based upon approval of the competent authority. As per Clause 4, price was based upon super area including pro rata share in common areas. It was agreed that in case of increase in area, 10% of the increased area would be paid as per the initial rate of booking and the balance would be paid at the then prevailing market/company’s rate. Any decrease was to be refunded/adjusted similarly. As per Clause 6 the basic sale price was to be firm except increase in costs due to construction costs, super area, EDC, IDC, Government rates, taxes, cesses etc. apart from costs of effluent treatment plant, etc. As per final sanctioned plan, increase of 202 sq ft was informed to the respondent/complainant on 14.12.2013. Revised plans were shared and in view of the fact that the change in area was noticed after the Allotment Letter, respondent was asked to pay at the original booking rate. Despite reminders, respondent refused to pay the difference and instead approached the District Commission, Delhi in February 2014 seeking various restraining restrictions which was turned down on 23.08.2018. Consumer complaint no. 1108 of 2018 was then filed which came to be disposed of vide the impugned order.

4.      The order of the State Commission is challenged on the grounds that (i) the order ignores the definition of ‘unfair trade practice’ in section 2(r) of the Act in upholding that the appellant/opposite party was guilty of unfair trade practice in increasing the super area; (ii) the order failed to appreciate that the demand for increase in super area was as per the agreed terms of the contract; (iii) the State Commission failed to appreciate that as per well settled principle of law, pricing cannot be a matter of a consumer dispute; (iv) the order ignored the evidence on record that the area had gone up by 202 sq ft which the respondent would enjoy. Learned counsel for the appellant made oral submissions on the same lines.

5.      Per contra, on behalf of the respondent it was contended that the appeal was devoid of merit and that the impugned order was on the basis of detailed appreciation of facts, law and evidence. It was argued that the demand to pay Rs 4,07,051/- by the appellant was based on a sudden increase in the area of the flat and constituted an unfair trade practice since it was done after the casting of the second floor and after 85% of the total cost had been paid. No prior intimation was given or consent obtained and emails for detailed plans dated 18.12.2012, 21.12.2012 and 14.01.2014 went unheeded. It was mentioned that as directed by the State Commission, Rs 5,45,252/- had been paid by the respondent on 13.06.2022 and that as per order dated 25.08.2002 possession had been handed over by the appellant on 15.09.2022. It was, however, submitted that the appellant had not registered the flat since Rs 4,07,051/- was being asked to be paid which the respondent contests. Reliance was placed on this Commission’s order in Pawan Gupta Vs. Experion Developers Pvt. Ltd., in CC No. 286 of 2018 dated 26.08.2020, I (2021) CPJ 72 (NC) wherein it was held that

“Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed.”

6.      In the impugned order, the State Commission has held as under:

“19.   On perusal of the above settled law, it is clear that once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings which were specified at the time of approval cannot be changed until there is a change either in the area of the flat or in the area of any of the common buildings or there is a change in the total area of the project (plot area).

20.     Returning to the facts of the present case, we failed to find any document which shows that there was change in either the total area of the flat or in the area of any of the common buildings or any change in the total area of the project. Moreover, the opposite party failed to show any comparison/difference in the areas of the original approved space and the common spaces/buildings which were finally allotted by the opposite party to the buyers. Therefore, we do not see any justification in increasing the super area of the set flat and charging the excess amount for the said increased area by the opposite party.

21.     Therefore, relying on the above settled law and the extensive discussions, we are of the view that the opposite party is guilty of unfair trade practices and was not justified on increasing the super area of the flat in question.”

7.      From the foregoing, it is evident that the Allotment Letter provided as per Clauses 3, 4 and 6 that the super area of the residential floor which had been indicated as 1500 sq ft tentatively could change subsequently once the competent authority approved the layout plans including the dimensions of the flat, common buildings and other facilities constituting part of the common facilities that would count towards the computation of the super area of the flat booked.  It is not disputed that the appellant intimated the respondent of the increase in area and consequentially of the flat after the second roof was cast. Except to show a blueprint plan document in support of the plan finally approved by the competent authority, the appellant has not brought any record to support its claim for the enhanced super area. The least it could have done was to provide the approvals of floor plans of buildings, including the common facility buildings, and to communicate to the respondent the relative changes contributing to the upward revision of the floor area vis-à-vis the originally planned scheme, given that these were tentative at the time of booking. The approved plans would have been available with the appellant before the commencement of the construction of the residential units. There is nothing brought on record to evidence that there was any disclosure by the appellant with the respondent. The very fact that this information was not provided and was done only after the second slab was cast by which time nearly 85% of the payment had been received is certainly an unfair trade practice by the appellant based on its dominant position. Nothing prevented it from doing so earlier. However, it chose not to do so. The respondent on the other hand made several efforts to obtain details which was also denied. As held in Pawan Gupta (supra), once the original/tentative plans changed, the consequential super area could change. However, these were never conveyed to the respondent. Seeking shelter behind the clauses of the Allotment Letter is, therefore, of no avail to the appellant at this stage. 

8.      In view of the discussion above, I do not find merit in the appeal warranting any interference. Accordingly, the appeal is dismissed. Order of the State Commission is affirmed. Pending IAs, if any, stand disposed of with this order.