SRICHAND K. BAJAJ vs S.M.N. CONSUMER PROTECTION COUNCIL

THIS is an appeal against the order dated 24th July, 1992 passed by the State Consumer Disputes Redressal Commission, Tamil Nadu at Madras in O.P. No. 257 of 1991. The said Original Petition was filed by the present Respondents against the Appellant herein. The parties will be referred to as they were arrayed in the complaint.

THE Opposite Party (i.e. Appellant herein) is a promoter of flats. Dr. V. Ganesan (respondent No. 2 herein) had entered into an agreement with the Opposite Party for the construction and allotment of a flat in the second floor to be constructed according to the approved plan and the rules of the Madras Metropolitan Development Authority (for short ''MMDA''). THE original plan envisaged car parking area intended for the use of the flat owners. However, towards the end of the construction, the Opposite Party converted 7 car parking spaces into a ground floor apartment. He also erected columns for putting up 4th floor. According to the complainant, all these were deviations from the approved plan and were unauthorised. Dr. Ganesan complained to the MMDA who issued a notice to the Opposite Party to demolish the unauthorised construction. THE matter is still pending in appeal with the Government THE Complainants complained of the following deficiencies of service on the part of the promoter: (i) Dr. Ganesan, the Complainant No. 2 has been deprived of proper parking space for which damage is claimed at Rs. 10,000/-. (ii) THE Opposite Party has collected Rs. 10,000/- towards sales tax which has not been paid and he is bound to refund the same.(iii) THE Opposite Party has collected money for 1052 sq. ft. based on approved plan, but on the actual measurement the flat measures only 981 sq.ft. and thus the Opposite Party is liable to refund the amount of Rs. 28,400/- charged from the Complainant No. 2. (iv) THE Opposite Party has collected Rs. 10,520/- towards amenities, but no amenities are provided and therefore this amount is also liable to be refunded. Compensation and damages for mental agony have also been claimed by the Complainants. Complainant No. 1 (Respondent No. 1 herein) is a Consumer Association. The Opposite Party contested the claim of the Complainants. It averred that the construction conforms generally to the approved plan though certain minor variations were necessitated in respect of which a revised plan has been submitted and an appeal is also pending with the Government. As per the original plan, there was a provision of 11 closed covered garages to be allotted to the flat owners on payment. Only four allottees opted for the covered garages and hence the other 7 garages were not constructed. Dr. Ganesan initially asked for allotment of a covered garage, but he subsequently cancelled the demand. The Opposite Party, therefore, decided to construct a flat in lieu of 4 garages and increase the area of the common lobby by the area of 1 garage and to increase the area of the two ground floor flats by the area of 2 garages. Though columns were put up in the 4th floor but the scheme has been abandoned as no permission has been granted. The amount of Sales Tax was collected contingent in the event of the Government levying Sales Tax and the said amount is held by him for payment to the Government and in case Sales Tax is not payable to the Government, the amount will be refunded. On final measurement taken by the architect, the built up area of Dr. Ganesan comes to 1052 sq.ft. For the purpose of providing additional amenities, not mentioned in the agreement, like compound wall, lighting, provision of bore well, provision of servant''s toilets/office room, lumber room etc. an additional sum of Rs. 10,520/- has been collected and it is not liable to be refunded. The Complainant has sent a notice through his lawyer. Thereafter, the matter was settled by discussions and the Complainant paid Rs. 6,090/- in full and final settlement and he has taken possession of the flat.

The State Commission held that the space meant for parking places has been used by the Opposite Party as admitted in the counter. No parking space has been left for the Complainant to park his car and therefore, it amounts to deficiency in service. The Complainant was allowed Rs. 20,000/- on that account. About the amount of Rs. 10,100/- collected towards the Sales Tax, it was directed by the State Commission that the said amount will be deposited in State Bank of India and if ultimately it is found that the Sales Tax is leviable, the amount shall be utilised by the Opposite Party and, if not, it shall be refunded alongwith accrued interest to the second Complainant. The Opposite Party was also directed to pay to the Complainant-Dr. Ganesan, a sum of Rs. 24,396/- being the cost of the shortage in area. The State Commission further directed the Opposite Party to provide the amenities. Feeling aggrieved of that order, the Opposite Party has filed this appeal before this Commission.

BEFORE we proceed further, we may mention here that the present appeal has been filed after a delay of 16 days. The Appellant has filed an application for condonation of delay averring that though the order was delivered on 24th day of July, 1992 the copy of the order was served on his counsel only on 5th August, 1992 but unfortunately his (Appellant''s) mother fell seriously ill and ultimately she died on 11th August, 1992. In such circumstances, he had to remain mostly at Bangalore and had also to go to Haridwar to perform religious ceremonies and in the said circumstances, he could not file the appeal in time. Considering the circumstances stated by the Appellant, we are of the opinion that there are sufficient grounds for condoning the delay in filing the appeal and we order accordingly. We have heard the parties. The main contention of the complainant-Dr. Ganesan is that the original plan envisaged car parking area intended for the use of the flat owners. However, towards the end of the construction, the Opposite Party converted car parking spaces into a ground floor apartment. The contention of the Opposite Party, who is the Appellant herein is that as per the original plan, there was provision for construction of 11 closed covered garages to be allotted to the flat owners on payment. The Complainant Dr. Ganesan opted for a covered garage and agreed to make payment and he paid Rs. 10,000/- as advance towards the price of the garage which was Rs. 50,000/-. However, later on he wrote a letter to the appellant saying that he did not require the garage and the same can be given to any other person who is demanding for the same. It was further the case of the Appellant that only four allottees of the flats opted for garages and thus 7 garages were not constructed and the space meant for those 7 garages has been utilised as stated earlier. We have not been able to understand how the Complainant-Dr. Ganesan can have any grievance about the utilisation of the space of 7 covered garages by the Appellant when he had opted out for the allotment of one covered garage. The Appellant''s case further is that there is much parking space around the building and the Complainants have not been able to show that any open space around the building meant for parking cars has been utilised by the Appellant. The Complainant has not taken any step to get produced the approved plan from the Appellant to show that there is any violation about providing the parking spaces. Hence, we are of the opinion that the Complainant is not entitled to any compensation on the ground that he is being deprived of any parking space. Hence, the finding of the State Commission on this point is liable to be set aside.

THE next contention of the Complainant -Dr. Ganesan is that the Appellant has collected money for 1052 sq. ft. based on approved plan, but on actual measurements, the flat allotted gun measures only 981 sq. ft. and thus the appellant has collected extra money for 71 sq. ft. amounting to Rs. 28,400/-. THE State Commission had appointed a Local Commissioner to effect the measurement of flat allotted to Dr. Ganesan. According to the report of the Local Commissioner, the total area of the Complainant''s flat including the proportionate common area comes to 991.01 sq. ft. THE contention of the Appellant is that while measuring the plinth area of the flat of Dr. Ganesan Complainant, the Local Commissioner has only taken into consideration the carpet area but he has not taken into consideration the area under the walls of the flat. THE appellant has stated in the memorandum of appeal that three such measurements were available before the State Commission viz. the measurements submitted by the architect of the Complainant, the measurements submitted by the architect of the Appellant and finally the measurements submitted by the Local Commissioner appointed by the State Commission. THE State Commission should have considered all those measurements and then should have arrived at a finding if the area of the flat allotted to the Complainant is less than the agreed area. THE Appellant rightly drew our attention to the fact that the Complainant-Dr. Ganesan had issued a notice through his lawyer in which also he had raised the dispute about the area of the flat in addition to other disputes. However, later on the matter was discussed between the advocate of the Complainant and the Appellant. THEreafter the Complainant-Dr. Ganesan sent Rs. 6,090/- (Rs. 3,000/-being the balance of the cost of the flat and Rs 3.090/- being the interest calculated upto date). It was further mentioned by the Complainant in his a letter that it was in full and final settlement relating to the flat and he requested the Appellant to accept the amount and deliver the key and all the title deeds connected with the above flat. On receipt of the sum of Rs. 6,090/- the Appellant delivered the possession and the title deeds to the Complainant. We have not been able to understand how the Complainant-Dr. Ganesan after making payment of the balance amount and taking possession of the flat can now raise the dispute that the area of the flat allotted to him is less than the agreed area. Hence, the Complainant is not entitled to any amount on the ground that there is shortage in the area of the flat allotted to him and the order of the State Commission on this point also is set aside. The State Commission has also issued a direction to the appellant to provide the amenities such as compound wall, lighting, bore well, servant''s toilet etc. for which an additional sum of Rs. 10,500/- has been collected. The State Commission further held that there was no evidence as to whether these amenities have been provided or not and therefore, they were not in a position to pass any order thereof. However, it further remarked that if the amenities have not been provided, those should be provided immediately. It was for the Complainant to show that the amenities alleged to have been provided by the appellant have not been provided. Anyhow, we leave this direction of the State Commission undisturbed. The direction of the State Commission about the amount of Sales Tax collected by the Appellant does not require any interference.

FOR the reasons given above, we partly accept the present appeal and set aside the direction of the State Commission about the payment of compensation to the Complainant for deprivation of the parking space and also about the award of Rs. 24,396/- being the cost of alleged shortage in the area of the flat. The appeal is disposed of as above. The appellant is entitled to costs of the present proceedings which we assess at Rs. 1,000/-. Appeal partly allowed.