Mohammad Ibrahim Mulla vs Hamid Aboobakar Memon

THIS Revision Petition has been filed against the order of the Consumer Disputes Redressal Commission, Maharashtra by which the appeal filed by the present petitioner who was the Appellant before it, was dismissed.

THE facts as gathered from the file are that the present Respondent No. 1 Shri Hamid Abookar Memon had filed the complaint through Akhil Bhartiya Grahak Panchayat, Pune before the District Forum against the present petitioner Shri Mohammad Ibrahim Mulla. The case as set up in the complaint was that Shri Hamid Aboobakar Memon had purchased a flat from the present Petitioner who was the Opposite Party in the complaint (and will be referred to as such hereinafter).The Opposite Party is a builder. An agreement was signed between the parties and registered on 14th September, 1989. As per terms and conditions of the agreement the built up area (including balcony) should have been 715 sq. ft. However, after taking possession of the flat the Complainant asked his architect to verify the measurement and the area of the flat was found to be only 666.738 sq. ft. (including balcony). Thus the complainant was given 48 sq. ft. less area. Calculating the market price of that area the Complainant prayed that the builder should refund to him Rs. 24,000/ - with interest. The complaint was contested by the Opposite Party who pleaded that at the time of agreement dated 24th September, 1989 the Complainant was supplied copy of the building plan sanctioned by the Municipal Corporation and accordingly the total area mentioned in the agreement i.e. 715 sq. ft was fully discussed and brought to the notice of the complainant by the builders architect Mr. M.J. Kharkhanis whose certificate dearly mentioned the above fact. The contention of the Opposite Party before the District Forum was that the area of the staircase and landing shall be considered as built up area. According to the Opposite Party the area of the landing as well as stair case on the floor, where there are two flats situated is in fact notionally shared equally between the two flats. The area of the staircase as well as the landing is calculated as floor space index consumed and that the same cannot but be used by the two flat owners of the particular floor and for that reason the area of the staircase and landing had to be included in the built up area of the flat as per law and also as per equity (these facts are mentioned by the present Petitioner is the written submissions).

THE District Forum held that the area of the staircase is common and therefore, it cannot be considered as built up area which was to be given to the Complainant i.e. 715 sq. ft. (inclusive of balcony only) it was held that according to the certificate by the Complainants architect the built up area of the flat sold to the Complainant was 48 sq.ft less in area and thus there is deficiency in ''service'' on the part of the builder. The District Forum calculated the price of 48 sq. ft. by dividing the total value of the flat by 715 sq. ft and then multiplying by 48 sq. ft. The figure thus arrived at is Rs. 16,800/ -. The District Forum directed the Opposite Party to pay that sum to the Complainant within a period of two months.

THE Opposite Party filed appeal before the State Commission who dismissed it by a cryptic order. It mentioned the finding of fact arrived at by the District Forum and remarked ''we have heard Ms. Madhuri Kelkar, Advocate for the appellant. We are not satisfied from her argument that there is any point to interfere with the impugned order. Hence we reject this appeal''. The State Commission has not referred to any of the arguments said to have been advanced on behalf of the then Appellant. Feeling aggrieved of that order the Opposite Party has filed this Revision Petition. Before we proceed further we make it clear that if a builder gives less area to an allottee than agreed upon then it is dearly a case of deficiency on the part of the builder. When a consumer has agreed to purchase certain area it is the duty of the builder to provide that area, to him. The provider of service cannot thrust upon the consumer a plot/flat of less area than the one for which he (i.e. consumer) has paid the price.

HOWEVER , in the present case we are satisfied that less area has not been given to the buyer -Complainant. The Opposite Partys architect Mr. Karkhanis has issued a certificate which was produced before the District Forum and it showed'' ¦ ¦the built -up area of tenament No. 2 i.e. flat No. 2 worked out comes 715 sq. ft including balcony and staircase.'' The said flat has been sold to the Complainant. The Opposite Party has produced Building Rules and Byelaws of the Municipal Corporation, Pune which show that the area covered by staircase of any sort shall be considered as built up area. Though the said Building Rules and Bye -laws are not much relevant for the purpose of disposal of this petition but it shows that the staircase is considered as built area while the plan is sanctioned by the Corporation. When a builder sells a flat to a buyer and provides him with a staircase and landing then the buyer has to pay for the same. The area of the landing as well as the staircase on the floor where two flats are situated is in fact notionally shared between the two flat owners and thus proportionate area of the landing and staircase has to be included in the built up area of a flat. Hence relying upon the certificate issued by the Opposite Partys architect, we hold that there is no deficiency in the area sold to the Complainant and thus the Opposite Party is not guilty of any deficiency in the rendering of service. The State Commission, as noticed above, passed a cyptic order without noticing the contention of the Opposite Party -Appellant before it. Thus the State Commission failed to exercise its jurisdiction and has disposed of the appeal with material irregularity. Consequently we allow the present Revision Petition and set aside the orders passed by the State Commission and the District Forum and dismiss the complaint. We make no order as to costs. Revision Petition allowed.