PONDICHERRY CO-OPERATIVE HOUSING SOCIETY LTD. vs M. SHANTHAKUMAR

THESE three appeals have been heard together and are disposed of by this common order.

THE case of the appellants are as follows : THEy have purchased flats from the opposite party and they have been allotted flats having an area of 933.45 sq. ft. for a cost of Rs. 4,35,000/- whereas flats in the same building in the first and second floors allotted to some other persons have an area of 995.88 sq. ft. Hence, there is a deficiency in service. Accordingly they approached the District Forum, with (he following prayers : "to direct the opposite party to pay a sum of rupees one lakh as compensation towards the lost area, fifty thousand towards non-providing of their legitimate balcony and wash portion, fifty thousand towards mental pain and agony and ten thousand towards costs due to unfair trade practice, deficiency of service."

Before the District Forum the opposite party contended that the flat was purchased by the respective complainants upon their actual visits of the flats after construction and that the price was fixed taking into account, the actual portions sold to them. The opposite party raised also a question of jurisdiction.

The District Forum by order dated 23.12.1996 over-ruled the objection of jurisdiction and held that on account of the difference in the area and the non-provision of balcony and working plat form the complainants were entitled to a compensation of Rs. 8,000/- each.

AGGRIEVED by that order the opposite party has filed these appeals. The learned Counsel for the appellants would contend that when a multiple flat building is constructed the price and the area of each flat will not be uniform. He would point out that in the present case all the complainants have been allowed to visit the flats offered to them and they have been informed of the price they have to pay. After having inspected the flats they have accepted to purchase them as they were for the price indicated and that therefore, they cannot complain of any deficiency in service.

LET us examine whether there is any deficiency. The only basis for the grievance of the complainants is that the upper flats are having additional areas by way of balcony and working platform. It is obvious that in a flat on the ground floor there cannot be a balcony. In a building consisting of several apartments/ the area and the value of each flat may be the same. They will vary according to the floors, the location and the other relevant factors. Each flat will have its own advantageous and drawbacks and therefore, there is bound to be different in price or in area or in both. On account of such difference, the complainants cannot say that there is a deficiency in service. It is also to be noted that the complainants have visited the flats before purchase and there has been no allegation of alteration which has diminished area or the value or the structure of the building after their visit, therefore there is no room for complaint. The learned Counsel for the respondents complainants would draw our attention to the first offer made by the opposite party in which they have indicated an area of 1010 sq. ft. including common area that the opposite party has not indicated the area around the house which would be under their exclusive possession, and their share in the common area. On account of their lapse it is contended that the complainants cannot verify whether they have been sold the area which has been offered. This last con tention raises a matter which was not agitated before the District Forum. If in the sale deed the common area was not referred to and if their share in the common area sold to the complainants is not indicated, there is room for grievance. In fact when the whole building is pulled down the shares of the flat owners in the ground will arise. If they are not specified properly now itself there will be a room for disputes. Since the matter was not raised before the District Forum we do not pass any order. The complainants may approach the opposite party to indicate their share in the common area and the area around their house on which they have an exclusive right of enjoyment or ownership. If they were not satisfied, they may approach again the Forum. In the result, the appeals are allowed and the orders of the District Forum are set aside. The complaints are dismissed. No cost. Appeals allowed.