JUSTICE V.K. JAIN, PRESIDING MEMBER

            The complainant / respondent booked a residential flat with the petitioner in a project namely “Ansal Courtyard”, in Meerut and Flat No. AGFO-6 admeasuring 1126 sq. ft. was allotted to her vide letter dated 07.4.2010 for a consideration of Rs.15,76,400/-.  The petitioner covered an area admeasuring 130 sq. ft. in front of the allotted flat and below the balcony of the first floor by bricks and steel pipes and demanded a sum of Rs.1,82,000/- from the complainant, claiming that the area of the flat had increased.  The case of the complainant is that the alleged additional area would obstruct the egress and ingress and has been enclosed without her consent.  This is also her case that the said area has been enclosed without approval from Meerut Development Authority.  Since the complainant has paid a sum of Rs.17,11,928/- to the petitioner, her case is that she had made an excess payment of Rs.1,35,528/- to the petitioner.  Since the possession of the allotted flat was not offered to her, the complainant approached the concerned District Forum by way of a consumer complaint, seeking possession of the flat with compensation as well as refund of the excess payment made by her.

2.      The complaint was resisted by the petitioner, which admitted the payment of Rs.17,14,428/- from the complainant and claimed that the amount of Rs.1,65,699/- is still due from her. 

3.      The District Forum vide its order dated 17.10.2014 directed the petitioner to pay an amount of Rs.1,39,028/- to the complainant holding that the said amount had been paid in excess of the amount payable by the complainant.  Interest on that amount @ 8% per annum was also awarded. 

4.      Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal.  Vide impugned order dated 09.10.2015, the State Commission dismissed the appeal filed by the petitioner.  Being still aggrieved the petitioner is before this Commission by way of the present revision petition.

5.      As far as payment for the alleged excess area is concerned, admittedly no consent of the complainant was obtained by the petitioner for providing the said area to her by enclosing the area below the balcony of the first floor, using brick and steel pipes for the purpose.  Though, the area of the flat could increase or decrease during construction, and vide letter dated 12.4.2008, the petitioner informed the complainant that due to certain changes in layout plan, the area of her unit had increased, resulting in revision in the basic cost price of the flat, there is no evidence of the above referred excess area offered to the complainant by enclosing the space below the first floor balcony with brick and steel pipes having been approved by the concerned Municipal Corporation as a part of the regular construction.  Though, the petitioner has filed what purports to be the approved layout plan, I am unable to locate the area below the first floor balcony and enclosed by brick and steel having been approved in the said layout plan.  More importantly, an area offered merely by enclosing the vacant space below the first floor balcony by using of steel pipes and bricks cannot be treated as a regular construction and therefore, it cannot be said that such an enclosure had resulted in the increase in the covered area of the flat.  Therefore, in the absence of the consent of the complainant, the petitioner, in my view, was not justified in raising additional demand for the aforesaid enclosure, which according to the complainant is blocking her egress and ingress instead of providing any additional benefit to her.  Of course, the petitioner shall be at liberty to remove the pipes and bricks used by it for making the enclosure, thereby restoring the space below the first floor balcony to an open space.  The view taken by the fora below therefore, does not call for any interference by this Commission in exercise of its revisional jurisdiction. 

6.      Though, the agreement between the parties did not stipulate delivery of possession in a particular timeframe, Clause 21 of the agreement required the petitioner to give possession within a reasonable time form the execution of the allotment letter.  The allotment letter being dated 07.9.2007, the possession ought to have been offered by September, 2010.  The case of the petitioner is that the possession as offered by it to the complainant within three years from the allotment, by way of a letter dated 07.4.2010.  Despite, the aforesaid offer the possession could not be taken by the complainant since the petitioner insisted upon payment of additional price for the enclosure below the first floor balcony.  The additional demand raised by the petitioner being wholly unjustified, the complainant was justified in not paying the said amount.  Alternatively, he could have paid the said amount under protest, taken possession of the flat and then sought refund of that amount through the process of the Consumer Forum or a Civil Court.

7.      As a result of the petitioner insisting upon payment of the additional demand raised by it for the enclosure and the complainant having refused to pay the said demand, the flat remained unoccupied.  Though, the complainant had approached the District Forum by way of a consumer complaint in February, 2011 itself, he did not make any prayer to the District Forum to direct the petitioner to deliver possession of the allotted flat to her, without prejudice to the respective rights and contentions of the parties in the complaint nor did he offer to deposit the disputed amount with the District Forum during pendency of the complaint.  The petitioner also did not apply to the District Forum for a direction to the complainant to take possession of the allotted flat on deposit of the disputed amount with the said Forum during pendency of the consumer complaint.  No such attempt was made by either party during pendency of the appeal before the State Commission nor during pendency of this appeal before this Commission.

8.      In these circumstances, I am of the considered view that though the petitioner should refund the amount paid to it by the complainant, it need not pay any compensation for the delay in delivery of possession provided that the requisite occupancy certificate in respect of the allotted flat had been obtained by it before offering possession of the allotted flat to the complainant, vide letter dated 07.4.2010.  During the course of arguments, it was submitted by the learned counsel for the petitioner that they had obtained the requisite occupancy certificate / completion certificate in respect of the flat allotted to the complainant.  The petitioner therefore, was directed to file an affidavit, disclosing therein the date on which the requisite completion certificate / occupancy certificate in respect of the allotted flat was obtained by it.  No such affidavit however, has been filed even till 10.7.2019, which indicates that probably the requisite completion certificate e/ occupancy certificate has not been obtained by the petitioner till date.

9.      For the reasons stated hereinabove, the complaint filed by the respondent is disposed of with the following directions :

          (i)      The petitioner shall refund the amount of Rs.1,39,028/- to the complainant along with simple interest on that amount @ 8% per annum from the date of institution of the consumer complaint till the date of refund.

(ii)      The petitioner shall deliver possession of the allotted flat, complete in all respects, to the complainant within four weeks from today, without insisting upon any further payment provided that the requisite occupancy certificate / completion certificate in respect of the allotted flat has already been obtained.

(iii)     In case the occupancy certificate / completion certificate in respect of the allotted flat was obtained by the petitioner after 07.9.2010 when three years expired from the date of allotment, it shall pay compensation in the form of simple interest @ 8% per annum to the complainant on the entire cost of the allotted flat with effect from 08.9.2010, till the date on which the occupancy certificate was obtained by it.

(iv)    In case, the petitioner has already not obtained the requisite occupancy certificate / completion certificate, it shall obtain the same at its own cost and responsibility within three months from today and thereafter, deliver possession of the flat to the complainant within four weeks thereafter.    In that case, compensation in the form of simple interest @ 8% per annum on the cost of the allotted flat shall be paid by the petitioner to the complainant with effect from 08.9.2010 till the date on which the possession, in terms of this order, is offered, after receiving the requisite occupancy certificate / completion certificate.