Mangnolia Infrastructure Development Ltd. vs Sandipan Santra & 2 Ors.

The complainants entered into a Memo. of Understanding dated 13.09.2013 with the appellant, for the purchase of a residential flat for a consideration of Rs. 40,26,200/- by paying an initial amount of Rs.12,45,183/-. The said MoU was followed by an agreement dated 09.01.2014. As per the agreement the flat was to have a super built-up area of 1114 sq. ft. and possession was to be delivered by June, 2015, though a grace period of six months was also available to the builder. The appellant sent a letter to the complainant on 23.06.2015 demanding the balance sale consideration. The complainant, however, claimed that the construction was not complete and the flat was smaller in size. He, therefore, approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the appellant which admitted the receipt of Rs.34,16,234/- from the complainant. The appellant also expressed willingness to deliver possession of the flat as well as of the car parking area to the complainant on payment of the outstanding amount which was stated to be Rs. 16,90,461/-.

The State Commission vide order dated 04.10.2018 and directed as under:-

"i. The opposite party no.1 is directed to deliver Letter of Possession and to execute the Deed of Conveyance in respect of the flat and demarcated covered car parking space as per Agreement for Sale dated 09.01.2014 in favour of complainants after obtaining Completion Certificate from the Bidhannagar Municipal Corporation within 90 days from date subject to payment of balance consideration amount of Rs. 6,09,966/-;

ii. The opposite party no.1 is directed to refund Rs.3,51,000/- to the complainants for less area of 117 sq. ft.;

ii. The opposite party no.1 is directed to pay compensation of in the form of simple interest @ 10% p.a. from the committed date of possession 01.01.2016 (inclusive of six months grace period) till the date of delivery of possession;

iv The opposite party no.1 is directed to pay Rs.20,000/- as cost of litigation to the complainants,

v The balance amount payable by the complainants, if any, shall be adjusted by OP No.1 out of the amount of Rs.3,51,000/- + compensation + litigation cost of Rs.20,000/- payable to them in terms of this order. The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainants, in terms of this order."

Being aggrieved from the order passed by the State Commission the appellant is before this Commission.

Primarily, there are two issues which arise for consideration in this appeal. The first issue is as regards the area of the flat and the second issue is with respect to the occupancy certificate/completion certificate of the flat allotted to the complainant.

Admittedly, the super built-up area of the flat was agreed to be 1114 sq. ft. A perusal of the report of Mr. K.S. Bhatia, who is a Chartered Engineer and Advocate and who was appointed by the State Commission to inspect the allotted flat would show that there was shortage in the area of the flat, the actual super built-up being 997 sq. ft., as against the agreed super built-up area of 1114 sq. ft.

The report to the extent it is relevant reads as under:-

"Now after going through the joint measurement record at site on 03.06.2017 one pint is abundantly clear that the size of living room is actually 8ft 5 inch x 9 ft inch instead of 18 ft-0 inch x 9ft-0 inch which means a difference and shortfall of covered area of 86 sq. ft. i.e. size of living room is 86 sq. ft. less than what has been mentioned in the typical floor plan being a part of the agreement. The sizes of the rest of the rooms area as per typical floor plan and is almost matching with it and may be considered as OK.

Now coming to the area of entire flat, the actual area works out as under based on site measurement as well as typical floor plan and building plan provided by the complainant.

-Actual Covered/Builtup area of flat =818 sq. ft.

-Agreed area of the flat between complainant and

OP No. 1 i.e. super builtpup area for sale and purchase =1114 sq. ft.

-Difference of area between super built up area and Built

up area = 296 sq. ft.

-% of area added to built up area arrived at super

built up area =36%

Due to reduction of area of 86 sq. ft. of covered area of living room, as a consequence super built up area shall be reduced by

86+36X86 = 117 sq.ft.

100

-Earlier agreed super built up area of the flat = 1114 sq. ft.

- Revised/actual Super built up area should be 1114-117 = 997 sq. ft."

It would thus be seen that an actual joint measurement was carried out at the site on 03.06.2017 and the covered area of the living room was found to be less to the extent 86 sq. ft. Since there was a difference of 36% between the built-up and super built-up area the shortfall in the super built-up was rightly found to be 117 sq. ft. I see no reason to disbelieve the report of Sh. K.S. Bhatia which is based upon the joint inspection and accordingly confirm the findings of the State Commission that there was shortfall in the area of the flat to the extent of 117 ft. of the super built-up area. To that extent the complainant would be entitled to proportionate reduction in the price of the flat.

The next question which arises for consideration is as to whether the requisite occupancy certificate had been obtained by the appellant or not. The case of the appellant is that they had obtained the occupancy certificate from Rajarhat Gopalpur Municipality on 21.07.2014. The submission of the complainant, on the other hand, is that the occupancy certificate could not have been obtained on that date since even the construction was not complete on that date the said certificate purports to be issued. He also submits that a reply under RTI Act was obtained by him from Bidhan Nagar Municipal Corporation which finds mention in the order of the State Commission and as per the said information dated 22.09.2017 the appellant is yet to obtain the occupancy certificate.

Since the appellant relied upon a particular certificate purporting to be issued by Rajahat Municipal Corporation, it becomes necessary to verify whether the said Corporation was competent to issue the requisite occupancy certificate in respect of this particular flat and if it was so competent then how Bidhan Nagar Municipal Corporation provided the information dated 17.02.2017 claiming that no occupancy certificate/completion certificate had issued. The State Commission did not try to verify the genuineness or otherwise of the occupancy certificate filed by the appellant and purporting to be issued by Rajarhat Municipal Corporation. In the absence of such a verification it would be difficult to say whether the occupancy certificate/completion certificate has been issued by the competent authority and if so on which date. The matter, therefore, needs to be remitted back to the State Commission to record findings on this issue, after examining an official from Bidhan Nagar Municipal Corporation in the light of the occupancy certificate filed by the appellant. The State Commission should show the certificate filed by the appellant to the concerned officer from Rajarhat Municipality and ask him to verify the record and then inform the State Commission as to whether Rajarhat Municipal Corporation was competent to issue the occupancy certificate and had actually issued the said occupancy certificate dated 21.07.2014. The State Commission should adjudicate on the issue of compensation being claimed by the complainant and the interest etc. being claimed by the appellant only after recording its findings on this crucial aspect of the matter.

The extent of compensation, if any, to the complainants would depend upon when the construction of the flat was complete in all respects or when the occupancy certificate by a competent authority was issued in respect of the said flat, whichever is earlier.

The flat in question was booked by the complainant way back in January, 2014. The construction of the flat according to the appellant was completed years ago. A vacant flat does not serve the purpose of either party. Therefore, it would only be fair and reasonable to deliver possession of the flat as well as of the car parking to the complainants till the matter is decided afresh by the State Commission in terms of this order, but the possession should be given without prejudice to the respective rights and contentions of the parties and adequate safeguards should be taken to protect the interest of the parties in the meanwhile. The appeal is, therefore, disposed of with the following directions:-

(a) The appellant shall deliver peaceful and vacant possession of the flat in question, complete in all respects, to the complainant/respondent within two months from today without prejudice to the respective rights and contentions of the parties.

(b) The car parking of the complainants shall also be handed over to the complainants along-with the possession of the flat.

(c) The complainants shall not create any third-party interest in the flat till the consumer complaint is decided afresh by the State Commission in terms of this order.

The parties shall appear before the State Commission on 31.08.2020. The State Commission shall decide the complaint afresh within six months of the parties appearing before it.