Per – Hon’ble Mr. S. R. Khanzode, Judicial Member

          These four appeals stand disposed of by this common order since they involve identical facts and common question of law.

[2]     Mr. Prasad Madhukar Deo and Mrs. Kalpana Prasad Deo are the Complainants in Consumer Complaint No.317 of 2005.  Mr. Shriram Kisan Bhatambrekar is the Complainant in Consumer Complaint No.57 of 2006.  Mr. Chandrakant N. Bawne is the Complainant in Consumer Complaint No.296 of 2007.  Suffice to say that the Complainant – Mr. Shriram Kisan Bhatambrekar, was occupying tenanted premises in house property bearing No.117, Kasba Peth, Pune; while the Complainants from other two consumer complaints were occupying tenanted premises in house property bearing No.116, Kasba Peth, Pune.  Both these adjoining properties were given for development to the Appellant/original Opponent, namely – M/s. Shreeyog Constructions, a partnership firm, represented by its partners – Mr. Satish Kashinath Wadke and Mr. Ravindra Pandurang Wadke (hereinafter referred to as ‘the builder’).  The builder entered into separate agreements with the respective Complainants.  As per the said agreement, the Complainants were to give new flats in the proposed construction after development at concessional rates to the extent of the area of their respective tenanted premises and for additional area, they were to pay consideration at a higher rate.  The Complainant – Mr. Chandrakant N. Bawne, was put in possession of his flat by the end of month of March-2005, while the other Complainants are yet to be put in possession of their respective flats.  Mr. Chandrakant N. Bawne’s original tenanted area was admeasuring about 325 sq. ft. and he agreed to purchase a flat having area admeasuring about 425 sq. ft. (built-up).  He was actually put in possession of a flat admeasuring 336.02 sq. ft., in built-up area.  While claiming the relief, he claimed possession of the entire area as agreed or in the alternative compensation for the less area.  Similar is the case of other Complainants, who claimed possession of the entire area as per the agreement.  Deficiency in service on the part of the builder is alleged by all these Complainants for not handing-over the possession of the area, as agreed.

[3]     The Forum partly allowed all these consumer complaints and directed the builder to hand-over possessions of their respective flats to the Complainants, Mr. Prasad Madhukar Deo & Mrs. Kalpana Prasad Deo, and Mr. Shriram K. Bhatambrekar and also awarded compensation for the less area to these Complainants.  In case of Complainant – Mr. Chandrakant N. Bawne, since he had received possession of part of the area agreed to be put in possession, a compensation for shortfall in area was awarded to him.  Besides that the builder was further directed to install a lift in the building and to obtain the requisite certificate of the competent authority for make it operational.  The Forum further directed the builder to form & register a co-operative housing society of the flat-purchasers and to execute all relevant documents.  Feeling aggrieved thereby, the builder preferred these three appeals in each consumer complaint, supra.

[4]     Besides this, the Complainant in Consumer Complaint No.57 of 2006, namely – Mr. Shriram Kisan Bhatambrekar also preferred an appeal bearing No.734 of 2009 against the impugned order since obviously he is not satisfied with the relief granted in his favour.

[5]     Heard both the parties.

[6]     In the instant case, in consumer complaints other than the complaint of Mr. Chandrakant N. Bawne, possession of the flats were not given after obtaining the Occupancy Certificate, and therefore, the cause of action in respect of their complaints being continuous, no question of limitation would arise in their case.  So far as consumer complaint of Mr. Chandrakant N. Bawne is concerned, as per the averments made in Complaint No.296 of 2007, which was filed on 20/11/2007, he claimed possession of the entire premises as per the agreement dated 31/12/2002 i.e. the total area agreed of 425 sq. ft.  However, he is handed over a flat admeasuring 325 sq. ft.  Naturally therefore, he claims possession of additional area of 100 sq. ft.  It is further pleaded by him that when he was handed over possession of the part area on 30/3/2005, he raised a contention about the flat having less area but, at that time, it was assured to him by the builder to sort out the issue after inspection of the municipal corporation authorities and obtaining Completion Certificate.  In the backdrop of these circumstances, his consumer complaint is also being for handing over possession of the area actually agreed, the cause of action remains continuous and his consumer complaint also cannot be said as time-barred.  The objections raised on behalf of builder on this issue are devoid of any substance.

[7]     Admittedly, the flats which are agreed to be sold to all these Complainants are actually less in area as per the sanctioned plan of the municipal corporation.  Now, the builder cannot go beyond the sanctioned plan and he is also not in a position to hand-over the actual area as agreed to the Complainants as per their respective agreements.  Under the circumstances, the Complainants cannot claim possession of the flats having actual area as per the agreements.  Thus, the Complainant – Mr. Shriram Krishnanath Bhatambrekar can be put in possession of a unit or flat bearing No.103, while the Complainants – Mr. Prasad Madhukar Deo and Mrs. Kalpana Prasad Deo can be put in possession of their agreed flat bearing No.202 and for the shortfall in the area they should be suitably compensated.  In case of the Complainant – Mr. Chandrakant N. Bawne, he is already put in possession of a flat bearing No.1, having area 336 sq. ft. and thus, there is a shortfall in area in his case also for which he can also be suitably compensated.  Deficiency in service on the part of the builder to this extent is well-established.

[8]     Then, the question arises as to what is the actual area handed over to the respective Complainants and accordingly, what is the area which fall short than the area agreed to be given to the Complainants.  In this respect, there is an evidence of architect and interior designer, namely – Smt. Vineeta Kuray, filed on behalf of the Complainants in their respective consumer complaints.  There is no evidence in rebuttal to it and there is no reason to not to accept the evidence of Smt. Vineeta Kuray given on affidavit.  Only in one consumer complaint i.e. in case of Mr. Chandrakant N. Bawne, the builder filed certificate issued by its architect – Deshpande & Degaonkar, but, said certificate is not tendered in evidence inasmuch as there is no affidavit of the author of said certificate.  Therefore, the Forum rightly accepted the evidence of Smt. Vineeta Kuray adduced on behalf of the Complainants.  On its basis the Forum tabularized the shortfall of the area in paragraph (13) of the impugned order and which we for the convenience, prefer to reproduce the same here-in-below:-

[9]     The Forum took basis to calculate compensation for the shortfall in area @ `893/- per sq. ft. which is agreed to be given by the Complainants while securing additional area from the builder.  Said logic and reasoning being based on sound principle and taken basis for just compensation awarded by the Forum, we find no reason to take a different view on this issue than what has been taken by the Forum.

[10]      In Appeal No.734 of 2009, the Appellant/original Complainant, namely – Mr. Shriram Kisan Bhatambrekar raised a grievance that though the Forum rightly upheld the calculations of his architect regarding the area, fell into error in calculation compensation for the lesser area.  He perhaps wanted to refer to ready-reckoner rates of the year 2003 and 2009.  However, such ready-reckoner rates are of hypothetical valuation for the purpose of calculation of stamp-duty.  They themselves cannot be accepted in absence of any other material for calculating compensation for the less area.  The Forum, as observed earlier, has rightly taken the basis to calculate the compensation for the less area @ `893/- per sq. ft. and said discretion used by the Forum cannot be faulted with.  Thus, we find no merits in the appeal preferred by Mr. Shriram Kisan Bhatambrekar.

[11]    Admittedly, the society of flat-purchasers or deed of apartment is yet to be executed, which is a statutory obligation on the part the builder to fulfill.  Therefore, directions given by the Forum as per the impugned order to this extent also appear to be proper.

[12]    We find no reason to disturb the finding and direction given by the Forum in respect of installation of a lift and obtaining requisite license to make it operational.

          For the reasons stated above, we find the appeals devoid of any substance and holding accordingly, we pass the following order:-

ORDER

Appeal bearing Nos.717 of 2009, 718 of 2009, 719 of 2009 and 734 of 2009 stands dismissed.  In the given circumstances, both the parties to bear their own costs.

Pronounced on 19^th September, 2011