K. Chandradas Nadar : Judicial Member
This is a complaint filed Under Section 17 of the Consumer Protection Act. The allegations in the complaint are that the complainant was the owner in possession of an extent of 40.5 cents of property comprised in survey nos.341/B, 342 and 343/1-3 of Thycaudu village. She obtained the property as per settlement deed No.735/1975.The extent of property conveyed as per the settlement deed is 36.512 cents. The first opposite party is a partnership firm and opposite parties 2 and 3 are the partners. They are engaged in the business of development of properties by constructing multi-storied buildings and apartments. On 10.11.2004 the complainant and opposite parties entered into an agreement to develop the property scheduled in the complaint by constructing multi-storied building. Pursuant to the agreement the complainant executed power of attorney in favour of opposite parties 2 and 3. As security for the prompt performance of the agreement, the complainant accepted from the opposite parties an interest free refundable deposit of Rs.7, 00,000/-. Based on the agreement and power of attorney the opposite parties constructed a multi storied residential apartment complex in the property and named it as œSkyline Fairmont Apartments?. There are 38 residential apartments and that much number of covered car parking area in the complex. As per the agreement dated 10.11.2004 and power of attorney the complainant authorized the opposite parties to sell portion of the property scheduled in the complaint to their nominees in consideration of 20.50 percent of the total saleable area ( including share of common areas) in the apartment complex. The opposite parties also agreed to give the complainant one covered car parking area for each of the residential apartments to be given to her. In the agreement the saleable area of an apartment is stated as the apartment area indicated in the floor plan of the project brochure which was never made available to the complainant.
2. The opposite parties as per letter dated 19.04.2005 communicated the complainant their proposal to allot 8 apartments to the complainant towards consideration due to her without specifying the area and value there of. There after exercising the power given to the opposite parties under the power of attorney, they executed registered sale deeds where by they sold 30 apartments to various persons without informing the complainant anything about the sold out apartment area common area and the price of the same. The opposite parties as per letter dated 28.01.2008 allotted eight apartments to the complainant stating the total area of the apartments as 12,761 sq.ft which according to them was in excess of the area to which the complainant was entitled to. The excess area according to the opposite parties was 512 sq.ft and demanded price for the excess area at the rate of Rs.1400 per sq.ft. They have no right to make such a demand as per the agreement. The claim that the total actual saleable area of Fairmont project is 59,751 sq.ft is not correct. The opposite parties have demanded as per letter dated 28.01.2008 a total sum of Rs.4,29,835/- as service tax. They are not entitled to demand or collect the same. The opposite parties further demanded Rs.8,66,870/- towards deposit made to the Kerala Water Authority and the KSEB. The opposite parties never accounted such deposits. The complainant is entitled to receipts for the same. For seven apartments the complainant had remitted Rs.15,050/- each to the KSEB. The apartment complex is yet to get water connection from the Kerala Water Authority. The opposite parties have demanded a total sum of Rs.27,68,716/-. The complainant is admitting her liability to pay only Rs.7,00,000/- which she received as refundable interest free security deposit at the time of agreement dated 10.11.2004. The agreement dated 10.11.2004 does not stipulate any contingency of allotment of excess area to the complainant and the opposite parties charging sale price on her. The complainant accepted the proposal dated 19.04.2005 to allot 8 apartments to her and thus the proposal has become final on acceptance by her and it merged with the agreement as part of the sale consideration due to her. There after the opposite parties are estopped from going behind it. Thus the opposite parties are not entitled to demand any sum as price for excess area. From the copy of building permit and approved plan furnished to the complainant under the Right to Information Act 2005 it is revealed that multi storied building having 6675.18 M² area is constructed over 36.45 cents deviating largely from the plan furnished to the complainant. Even if the measurements shown in the approved plan are taken as the correct measurements of the built up area, the complainant is entitled to 1386.86 M² area of residential apartments which is equivalent to 14922.61 sq.ft area. So calculation of complainants entitlement as 12249 sq.ft area is without any basis. Thus there is really deficiency of 2161.61 sq.ft area in making allotment to the complainant. The opposite parties have executed 30 sale deeds during the period between 26.11.2006 and 15.03.2007 and in those sale deeds the sold out area is shown as per the measurements given in the approved plan and permit.
3. Since the building covers the entire property of 40.5 cents the measurement shown in the building permit should be incorrect and the built up area is more. Hence the complainant engaged M/s.Bhavani Constructions to measure the building and ascertain the total built up area. They found that the total built up area is really 91,204.34 sq.ft and therefore the complainant is entitled to 18,696.89 sq.ft area. Thus really there is deficiency of 3774.28 sq.ft in the built up area allotted to her by the opposite parties. They are bound to compensate the same. The reasonable price for the deficit area even as per clause 3 of the agreement dated 10.11.2004 would come to Rs.52,33,992. If the deficit area is found to be 2161.61 sq.ft the amount due to the complainant would be Rs.30,26,254. The complainant demanded settlement of her claim through repeated communications and by notice sent through her lawyer. The opposite parties gave possession of 7 apartments to the complainant, but withheld delivery of possession of one apartment demanding Rs.27,68,716/- from her. They have retained possession of Apartment 6 A violating the terms and conditions in the agreement dated 10.12.2004. There is deficiency in service and unfair trade practice on the part of the opposite parties. Hence the complaint seeks to ascertain the total actual built up area or saleable area of Fairmont apartments constructed on the property scheduled in the complaint, and recover possession of Apartment No.6A ear marked and allotted to the complainant in lieu of sale consideration due to her in occupiable good condition with Rs.5000/- per month from 15.11.2008 towards use and occupation and compensation of Rs.50,00,000/- towards the deficit residential area allotted to the complainant in the residential complex with interest.
4. The opposite parties filed joint version. Their contentions in brief are that since voluminous evidence is required to be recorded the complaint is a fit one for adjudication by a civil court. The agreement dated 10.11.2004 deals with properties in survey nos.343/1-3, 341B and 342 of Thycaud village. The mutual rights and obligations are set out in detail in the agreement. The agreement also provides for refund of the interest free security deposit of Rs.7,00,000/-. The construction of the building namely Skyline Fairmont apartments is on the basis of the plan approved by the Corporation of Thiruvananthapuram. Towards the consideration of providing 20.5 percent of actual saleable area to the complainant the opposite parties offered the 8 flats mentioned in the version. This was accepted by the complainant. 20.5% of the total actual saleable area mentioned in the agreement includes the common areas also. 20.5% of the apartment area which was allotted to the complainant is well indicated in the floor plan of the project brochure and the area worked out to 12,761 sq.ft which is 512 sq.ft more than the complainants entitlement. It is incorrect to say that project brochure drawn by the opposite parties was not made available to the complainant. An area of 12,761 sq.ft was allotted to the complainant excluding the car park area which was in excess by 512 sq.ft. One covered car park was allotted to the land owner for each apartment free of cost. The excess area of 512 sq.ft was accepted by the complainant and she can not resile out of it as she has acted upon it. The opposite parties are not bound to satisfy the complainant the value of the flats sold by them as per the terms of the power of attorney executed by the complainant. It is not necessary to intimate her details such as to whom the opposite parties have sold the flats or the terms there of. The complainant is entitled to 20.5% of the total actual saleable area ( including share of common areas alone ) The opposite parties have validly executed sale deeds in terms of the agreement and the power of attorney executed in their favour. The opposite parties are entitled to sell to customers of their choice the rest of the built up area after making available 20.5% of the total saleable area to the complainant. They are entitled to claim value for the excess 512 sq.ft area allotted to the complainant at the rate of Rs.1400 per sq.ft. The total actual saleable area in the apartment complex is 59,751 sq.ft consisting of 38 units namely - type A 10 nos each having 1848 sq.ft area, type B 10 nos each having 1599 sq.ft area type C 9 nos.each having 1680 sq.ft area and Type B 9 nos.each having 1129 sq.ft area. Thus the complainant is entitled to 12249 sq.ft saleable area only as per the agreement. But for convenience she was provided 8 flats with total saleable area of 12,761 sq.ft which is in excess by 512 sq.ft .
5. The obligation to pay service tax is on the part of the complainant. Hence the opposite parties are entitled to collect the same from the complainant. As per the agreement deposits made to the Kerala Water Authority and KSEB amounting to Rs.8,66,870/- is to be paid by the complainant. So the complainant can not limit her liability to Rs.7 ,00,000/-. The liability of the complainant is set forth in the communication dated 28.01.2008 correctly as Rs.27,68,816/-. Out of the said amount the complainant has directly remitted Rs.15,000/-.each for seven apartments, corporation tax at the rate of Rs.5000/- per apartment for seven apartments and made deposit before the KSEB at the rate of Rs.12,000/- each for seven apartments. She is having the balance liability of Rs.25,44,716/-. The attempt of the complainant is to escape from the above liability. The details of built up area of the 8 apartments allotted to the complainant are as mentioned in the version. If built up area is calculated as per the assessment and corporation records, the excess area allotted to the complainant is 623.86 sq.ft as against which the opposite parties have put forth claim for 512 sq.ft only. The claim that there is deficit of 2121.61 sq.ft area is incorrect. So also the claim that there is deficit of 3274.28 sq.ft as construction is made over the entire area of 40.5 cents of property is also incorrect. The site over which the building is put up does not cover 40.5 cents as claimed, but the opposite parties are entitled to use the 40.50 cents described in A Schedule as per the agreement. The entire land of 40.5 cents in possession now stands mutated in favour of the apartment owners including the complainant. As the complainant did not pay the amounts due to the opposite parties, they have not released one apartment marked Apartment 6 A in order to realize the amount due to them. When the amount is paid Flat 6 A would be released. The opposite parties have not retained any apartment or land in their ownership. As per the sale deeds conveying undivided shares to various owners only 36.452 cents of property is sold to them. The 38 flats constructed on it occupies 100% of 36.452 cents. There is no deficiency in service or unfair trade practice on the part of the opposite parties and the complaint is liable to be dismissed.
The points that arise for determination are
1. Whether deficiency in service or unfair trade practice on the part of the opposite parties is established by evidence
2. If so whether the complainant is entitled to all or any of the relief sought
The complainant gave evidence as PW1. Exts.A1 to A17 were marked on her side. The commissioner deputed by this commission filed his report. The commissioner is examined as PW2. Exts.C1, C1 (a) and C1 (b) are the reports filed by him. One witness was examined on behalf of the complainant as PW3. On the side of the opposite parties the Chief Manager of their Firm is examined as DW1. Exts.B1 to B23 were marked on the side of the opposite parties.
Arguments were heard.
Point Nos. 1 and 2
6. The complainant owned an extent of 36.52 cents of property comprised in survey nos. 341B, 342 and 343 1-3 of Thycaud village by virtue of settlement deed no.735/1975 executed by her mother. It is quite evident from evidence particularly the evidence of PWs 2 and 3 that the property is well bounded on all four sides. The definite allegation is that the area in the possession of the complainant as per her title deed is 40.5 cents. It is quite evident that the complainant is in possession of more area than mentioned in her title deed though the available evidence indicates slight variation in the actual extent. DW1 admitted that the entire property within the four boundaries was given possession of to the opposite parties. This was pursuant to Ext.A1 agreement between the complainant and the opposite parties . The first opposite party being a firm was represented by opposite parties 2 and 3 the partners. EXt.A1 dated 10.11.2004 was a joint venture agreement, the terms of which are very important. It is recited in Ext.A1 that in order to own modern residential accommodation and avail better returns the complainant desired to sell a portion of the A schedule property. Therefore the opposite parties conceived a project for constructing a building complex on the land where by the complainant could sell a portion of the land to the nominees of the opposite parties the developers, who are desirous of owning built up area apartments. As per the said scheme in consideration of the convenants in Ext.A1 and in consideration of 20.5% of the total actual saleable area ( including share of common areas ) in the building complex proposed to be constructed by the opposite parties on obtainment of necessary sanction and building permit which includes the undivided interest in the apartments to be given to the complainant or her nominees she agreed to sell to the opposite parties or their nominees proportionate undivided share in the property described in the B schedule to Ext.A1 in full satisfaction of their rights, claims, title and demands in the land described in the A schedule to Ext.A1. The opposite parties agreed that they shall have no manner of right title or interest in the undivided interest in the land retained by the owner for holding their residential space nor to the portion of the residential built area, so built for the complainant or her nominees. As per Clause 2 the opposite parties agreed to give the complainant one covered car parking area for each of the residential apartments to be given to her. It is specified in Clause 3 that the built up area consisting of residential areas to be handed over to the complainant by the Skyline builders shall be the actual total saleable area which includes proportionate share of common area also. Any difference ultimately arising in the built up area on account of apartment design restriction shall be compensated by the developers (opposite parties) to the owner ( complainant ) at the rate of Rs.1400 per sq.ft . It is also specified that the saleable area of an apartment shall be the apartment area indicated in the floor plan of the project brochure. The opposite parties agreed to pay Rs. 7,00,000/- to the complainant as refundable deposit. The complainant on her part agreed to abide by the rules and regulations framed by the association of the owners to be formed and in case of default by a majority of owners of apartments space in the proposed residential complex for the maintenance of common amenities and to contribute for the same in proportion to the built up area owned by her. The complainant also agreed to deposit with the developer at the time of taking possession of the agreed built up area what ever amount is chargeable as maintenance deposits for the maintenance of common amenities. She also agreed to pay all taxes rates, levies etc with respect to the allotted built up area as well as all service connections and cable charges and meter rent charges for electricity water supply and telephones as per any present or future statute or law and that in case of arrears the amount would bear interest at the rate of 18% per annum. These are the main terms of Ext.A1 agreement relevant in the present context.
7. The A schedule to the agreement reads : all that piece and parcel of land, comprising of 40.50 cents approximately ( 36.512 cents as per deed ) in survey no.343/1-3, 343-B, 342 in Thycaud village, Thiruvananthpuram Taluk with buildings bearing TC No.15/1497, 15/1498 and 15/1499 within the corporation limits of Trivandurm registration District of Trivandrum, Registration Sub District of as marked in the plan annexed hereto and bounded as detailed below( Details of boundaries are omitted) .The B schedule property is the area described in A schedule less the undivided share to be retained by the complainant owner. The C schedule to Ext.A1 provide building specifications. The D schedule details the restrictions on the rights of the owners The E schedule enlists the rights acknowledged by the owner. The F schedule narrates the terms accepted by the complainant owner.
8. Pursuant to Ext.A1 the complainant executed Ext.A2 power of attorney in favour of opposite parties 2 and 3 nominating and appointing them as her lawful attorneys to act either jointly or singly for and on her behalf to do the acts specified in Ext.A2. These included the power to advertise for sale or otherwise procure and negotiate the sale of her property described earlier for a price decided by M/s.Skyline builders ( OP1 ) to develop the property and construct building as the attorney may deem fit to fix receive from the purchaser or the purchasers consideration and to give proper receipt and discharge for the same, to execute and sign proper conveyance of sale deed to any purchaser, to present the deed of conveyance for registration to the proper registration authority to admit receipt of consideration money after due accounting of the same to her knowledge and satisfaction and to have the said deed registered and to do all acts deeds and things which may be necessary for conveying the property and registering the said property as fully and effectively in all respects as she could do if personally present. , to make such application as are deemed necessary before any authority or authorities like Trivandrum corporation, Kerala State Electricity Board, Kerala Water Authority, Chief Town Planner, Government of Kerala, Panchayat, Kerala Fire Force, Air Port Authority of India etc for putting up suitable structures on the said property , and to make such application as are deemed necessary for obtainment of revised permit before any authority like Trivandrum corporation , Kerala Fire Force, Air port authority of India, Govt of Kerala etc . It is further mentioned that Ext.A2 power of attorney is irrevocable and final and opposite parties 2 and 3 can function as the holder of the power of attorney In this regard and the complainant agreed to rectify and confirm all and what so ever the power of attorneys lawfully do or cause to be done by virtue of Ext.A2.
9. Pursuant to Exts.A1 and A2 and Ext.B1 the project brochure the opposite parties constructed 38 flats. It appears from Ext.A5 plan that the proposal was to construct 40 units of flats and 42 car parks. But Ext.A6 plan approved by the corporation of Thiruvananthapuram and Ext.A7 building permit to be issued by the same authority show that 38 flats and 40 car parks were permitted to be constructed. Clear evidence is also available to show that only 38 flats were constructed. Ext.A15 is the tax assessment list for 38 flats. Ext.A10 gives built up area details and apart from this the complainant as PW1 did not dispute the allegation that only 38 flats were constructed pursuant to the joint venture.
10. Then as per Ext.A1 agreement towards the consideration for making available the property of the complainant for the joint venture She was entitled to 20.50 % of the total actual saleable area including share of common areas in the building complex proposed to be constructed by the opposite parties on her property. After construction, towards the 20.50 % of the saleable area due to the complainant 8 apartments with 8 car parks were set apart by the opposite parties. Ext.A3 shows this. Out of the 8 flats and 8 car parks set apart to the complainant seven flats and seven car parks were allowed to be taken possession of by her and the opposite parties retained one flat namely Flat No.6 A with proportionate car parking and common areas saying that if 8 flats are given to the complainant she would get 512 sq.ft of saleable area including share in common areas more than actually due to her as per the agreement. As per the agreement itself the opposite parties were entitled to realize value for the excess area from the complainant at the rate of Rs.1400 per sq.ft . This appears to be the immediate provocation for the complaint. The complainant further alleges that considering the construction made by the opposite parties really if eight flats only are allotted there would be deficiency of 2161.61 sq.ft area. Considering the fact that the entire extent of 40.5 cents in the possession of the complainant was given to the opposite parties for construction there would be deficiency of 3774.28 sq.ft area to the complainant if only 8 flats are allotted.
11. A Consumer Forum or Consumer Commission has jurisdiction to adjudicate only limited questions. The complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. But this is in the context of Ext.A1 agreement executed between the parties whereby the complainant made available her property for constructing building complex for the consideration of 20.50 % of the saleable area including share in common areas in the building complex to be constructed by the opposite parties. The opposite parties were builders and the service availed from them was in the nature of constructing building complex. The 20.5% of the saleable area to be allotted to the complainant represented the consideration for the property sold by her. So on this aspect deficiency in service can not be exactly imputed. What is the unfair trade practice perpetrated by the opposite parties is also not alleged in the complaint precisely. What can be gathered from the complaint is that the failure to allot 20.50% actual saleable area including share in the common areas proportionate to the entire extent given for construction is unfair trade practice. Immediately questions like the actual extent or area over which the complainant had right and possession, the extent given to the opposite parties pursuant to the agreement and related questions arise for adjudication. This commission is powerless to decide the extent over which the complainant had title though this aspect can be looked into as an incidental question. The complainant produced Ext.A16 settlement deed executed in her favour by her mother. But it appears that as per Ext.A16 properties other than the property involved in this complaint were also given to her. Along with Ext.A16. Exts.B5 and B6 also become relevant. Ext.B5 is the copy of report sent from the village office Thycaud in the light of the application submitted by the complainant for getting mutation of 4 cents of property comprised in survey no.341 A of the Thycadu village. In the report it is stated that she got the said property as per settlement deed no.735/75 of Chalai Sub Registrar's Office (A16) along with property in adjacent survey numbers, the total extent being 39.085 cents. She had remitted tax for the property till 1995. But she had executed sale deed nos.1453 and 1449 of Chalai Sub Registrar's Office on 11.04.95 conveying right over an extent of 3 cents of property in survey No.341 A in favor of one Rajendra Prasad and Sindhu. They were remitting property tax as per two separate pattas in their favour. She had applied for mutation with regard to the said property. On measurement of the extent it was seen that the extent in resurvey no.69 was 40.162 cents but as per the documents the complainant had right over 36.075 cents only. Though she is in possession of an extent of 4.087 cents, she had no right or tax receipt in her favour for the said extent. Based on Ext.B5 report Ext.B6 communication was sent from the Taluk Office, Thiruvananthapuram declining mutation of the property in the name of the complainant sought for. Ext.B6 is signed by the additional Tahsildar , Thiruvananthapuram . So it appears from the available evidence that the complainant had possession of 40.162 cents of property but she had title only with regard to 36.075 cents of property when Ext.A1 agreement was entered into between the parties. At the same time the available evidence indicates that the property was well bounded on all four sides and even as per the admission of DW1 the possession of the entire property was given to them for constructing the building complex.
12. After constructing the building complex as indicated already the opposite parties retained thirty flats and allotted 8 flats and 8 car parks with proportionate share in common areas to the complainant towards 20.50 % of the saleable area. But actual possession of only 7 flats with car parking and share in common areas was given to her. Ext.A17 series ( same as Ext.B15 ) show that relating to the seven flats possession of which was given to the complainant as per these documents she acknowledged receipt of 3 sets of keys and property tax assessment index sheet issued from Trivandrum corporation with respect to the flats in Skyline Fairmont apartments constructed by the opposite parties towards part of sale consideration as per the agreement with the opposite parties. She agreed that the apartment construction is in good condition with respect to design and quality and extra works were done as per agreement with her. She further agreed that construction of the apartments was completed as per mutual agreement and under took to pay all liabilities accrued or arose or deemed to accrue or arise in future. She acknowledged that the TC.No of the apartments were also obtained. In the light of Ext.A17 there is little scope to argue that there was deficiency in service in the matter of construction.
13. It also appears from Ext.B2 ( series ) of sale deeds that opposite parties 2 and 3 invoking their right under Ext.A2 power of attorney executed by the complainant sold the 30 flats retained by them pursuant to Ext.A1 agreement to various buyers . Coming to the main grievance of the complainant that the eight flats with car parks and proportionate common areas do not represent 20.50% of the total saleable area including share in common areas, the main evidence adduced are the following. At the behest of the complainant PW3 an Executive Engineer retired from the service of the KSHB measured the existing structure with reference to the Corporation approved plan and prepared Ext.A10 report Not only that PW3 prepared the report without notice to the opposite parties, it appears that he has not prepared an impartial report. He has not bothered to calculate the area of 8 flats common areas and open space separately and at the same time his interest in the complainant is evident from the fact that he arrived at the total area of land as 40.16 cents even without measuring the same. So the evidence of PW3 and his report Ext.A10 are not reliable pieces of evidence.
14. PW2 a PWD Chief Engineer retired from service was appointed as commissioner from this commission. His reports are marked as Exts. C1 , C1 (a) and C1 (b) . He admitted that on 18.10.2010 opposite parties had sent telegram requesting him to adjourn the visit to the disputed construction since he proposed to visit the site on a Sunday. Subsequently he sent notice to the opposite parties and conducted site inspection. He admitted that the subsequent reports became necessary as there were slight variations in the first report. In Ext.C1 he has given the opinion that the opposite parties should pay the price for an extent of 3.348 cents . This is based on the conclusion that the area over which the complainant had possession was also actually utilized in constructing the flats. It may be true to say that the entire area within the four boundaries over a portion of which the complainant had no right but only possession was utilized for constructing the building complex. But the question is whether as per the agreement such a conclusion was warranted for the parties are bound by the agreement. He admitted that as per Ext.A7 the total plinth area or floor area is shown as 6775.18 m2 .He further admitted that he did not find any record to show that in making the construction there was any violation of the corporation approved plan or the building rules. He admitted that there were only 38 flats constructed on the property scheduled as A schedule in Ext.A1.
15. The evidence of PW1, the complainant herself is relevant. She admitted that the floor area of flats including those allotted to her is 12,761 sq.ft She did not deny that 20.5 % of 59751 sq.ft would be 12,249 sq.ft. She admitted that as per Ext.A1 agreement only the properties involved in survey nos. 343(1), 341 (b) and 342 (2) mentioned in Ext.A4 were given to the opp.parties and the extent of the property included in the said survey nos is only 36.452 cents. In Ext.A7 (a) the extent is mentioned as 36.512 cents . PW1 also admitted that the total extent of property covered by the 30 sale deeds executed as per her power of attorney is 28.66 cents. The corresponding 30 tax receipts show equal extent of undivided area.
16. So the possible conclusions that emerge are the following. As per Schedule A to Ext.A1 all the piece and parcel of land comprising of 40.5 cents approximately ( 36.512 cents as per title deed) in survey nos.343 1 - 3 343-B and 342 in Thycadu village, Thiruvananthapuram Taluk with three buildings there on was made the subject matter of the joint venture . As per the agreement 20.50 % of the total actual saleable area including share in common areas in the building complex proposed to be constructed by the opposite parties on the A schedule land was agreed to be given to the complainant or her nominees as consideration for making available the land for construction. So the subject matter of the joint venture was the land of the complainant over which she had title as well as possession without title. The available evidence clearly indicates that this well bounded area was made available for construction of the building complex and in fact building complex composed of 38 flats, equal number of car parks and common areas was constructed. No doubt the entire area was utilized for construction. But it is a fact that can not be denied that construction can be had only as per approved municipal corporation permit and plan. It is also mandatory that on all four sides of the building areas should be set apart as open space. The construction can not be made over the entire area. No violation of any building rules or corporation approved plan or permit is brought out in evidence. So apparently the case of the opp.parties that the building complex as shown in the corporation approved plan and permit was constructed is to be accepted. At the same time the total saleable area comprises of common areas as well. In short, the complainant would be entitled to 20.5 % of the floor area of the building 20.5 % of the car parking area and 20.5 % of the common areas. She can not claim 20.5 % of the floor area of the building in relation to the total area made available for construction. So really there is no acceptable evidence to show that the eight flats along with the 8 car parks and shared common areas do not form the 20.5 % of the total extent of property made available for constructing the building complex.
17. At the same time the agreement itself provides that the complainant will have common obligations with regard to the 8 flats to be allotted to her along with car park and common areas. The several claims put forward by the opp.parties based on Exts.B8, B10, B12, B16, B17, B18 and B19 may be sustainable in the light of the agreement between the parties. But those claims are outside the purview of this commission for adjudication and if remains unpaid, the opposite parties will have to resort to appropriate remedies for realization of the same.
18. The only question that remains to be considered is whether the opposite parties are entitled to retain Apartment no.6 A towards the amount allegedly due to them from the complainant. Admittedly, the complainant has taken possession of the remaining seven flats. Even as per the version the floor area of Apartment 6 A is 209.24 m2 equivalent to 2251.42 sq.ft (with proportionate car park and common area) At the same time the excess area is only 512 sq.ft. So the excess area being far less than 50 % of the area of Apartment 6 A by the simple mathematical proposition that more than 50 % is to be counted as one, the complainant is entitled to take possession of the 8th flat also. No right akin to lein is provided in Ext.A1 agreement. What is provided is only that any difference that ultimately arises in the built up area on account of apartment design restrictions shall be compensated by the developers to the owner at the rate of Rs.1400 per sq.ft . This provision does not authorize the builders to retain possession of any flat due to the complainant as per the agreement if amounts are due to the opposite parties from her. So the opposite parties will have to resort to appropriate other remedies to realize compensation for the excess floor area if any after possession of the 8th flat is given to the complainant.
19. In so far as the power of this commission is limited to mandates provided in the CP Act no order can be passed ascertaining the total built up area or saleable area as the case may be, since no deficiency in service is involved as it has relevance only with regard to the consideration for making available the property for the joint venture. For the same reason C relief also can not be granted. On the admission of the opposite parties that the complainant is entitled to eight flats with car parks and proportionate common areas, once construction is completed as per the agreement the failure to make available, this much number of flats with car parks and common areas is deficiency in service. So the complainant is entitled to the B relief sought in the complaint though she has the obligation to pay compensation for the excess area if any involved in the allotment of the eighth flat.
20. Therefore the complaint is allowed in part. The complainant is allowed to take possession of Apartment No.6 A of Fairmont Apartments ear marked and allotted to her in lieu of sale consideration. The opp.parties shall hand over possession of the said apartment within one month from the date of the order, failing which they shall pay to the complainant, compensation for use and occupation at the rate of Rs.5,000/- per month till handing over of possession of the flat. The parties are directed to bear their costs in this proceeding.