Vidya R Salunkhe vs Lahu Padu Gaikwad

LEARNED counsel for the parties present.

APPLICATIONS for substitution of legal heirs of both the respondents, namely, Shri Ramesh Kishan Sapkale, in revision petition No. 4564 of 2009 and Shri Dinakar Ramchandra Zagade, in revision petition No. 4565 of 2009, are allowed. Therefore, the legal heirs are impleaded as parties in both these cases.

THIS order shall decide the abovesaid six revision petitions because the similar questions of law and facts are involved in all these cases. In revision petition No. 4563 of 2009, there is a delay of 89 days in filing the revision petition. The delay has been explained in paras 3, 4 and 5 of the application for condonation of delay, which are reproduced as under: "3. After the impugned order of appeal was passed on 31.03.2009 and certified copy was issued on 15.06.2009.

That in meanwhile the petitioner due to litigations felt ill and is suffering from Hypertension, Spondylosis, (Cervical). She is undergoing treatment for the same.

Thereafter immediate steps were taken towards preferring the Revision Petition. The documents were collected from the Counsel at Mumbai and the same were sent to the counsel at Delhi. Thereafter immediate steps were taken by the Counsel towards filing of the petitions. There is delay of only days which are liable to be condoned in view of the above facts and circumstances. Hence it would be in the interest of justice if the delay is condoned and the matter is heard on merits."

However, the petitioner could not produce any evidence of hyper tension or Spondylosis, (Cervical). No medical record or certificate saw the light of the day. Similar grounds were taken in remaining five revision petitions but we will take facts from revision petition No. 4563 of 2009 titled as Vidya R. Salunkhe vs. Lahu Padu Gaikwad. Though there appears to be no good ground for condonation of delay and the counsel for the respondent/complainant has invited our attention towards the judgment in Balwant Singh Vs. Jagdish Singh and Ors. (Civil Appeal No. 1166 of 2006) decided by the Apex Court on 08.07.2010 wherein it was held. "The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005"]

VARIOUS other authorities i.e. Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 , and Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361 were also quoted.

LEARNED counsel for the respondent has further invited our attention towards the fact that execution application was moved before the District Forum wherein no such plea was raised by the petitioner that she was suffering from the above said ailments.

SINCE the parties belong to Mumabi, the petitioner was to prepare as many as six revision petitions, documents were collected from the counsel at Mumbai and the same were sent to the counsel at Delhi, therefore, I am of the considered view that liberty of being heard should be granted, subject to payment of some reasonable costs. It is also well settled that a person should not be condemned unheard. Keeping in view all these facts, I allow the applications for condonation of delay, subject to payment of Rs.10,000/ - as costs, in each case, which be paid to each complainant separately, through demand draft within 90 days from the date of receipt a copy of this order otherwise it will carry interest @9% p.a. till its realization.

NOW let us turn to the merits of this case. The only dispute which swirls around the question is whether the area of the few flats is 510 sq. ft. or 430 sq. ft. and in few flats the area is 340 sq. ft. or 266 sq. ft. It must be mentioned here that both the fora have given concurrent findings that the area measured is less than the agreed one.

LEARNED counsel for the petitioner has made following submissions. He submits that the report dated 6.7.2007 of Er. Ashok R. Hukkeri, (B.E.(Civil), A.M.I.C.E.(India), M.I.S.T.E., F.I.V.)/Court Commissioner mentions the following findings: "Findings: 1.Built Up area as per the agreement and actual of the disputed flat. Built Up area as in the registered agreement :340 sq. ft. Built up area after actual measurements :266.00 sq. ft."

The report dated 26.11.2007 of Er. Ashok R. Hukkeri, (B.E.(Civil), A.M.I.C.E.(India), M.I.S.T.E., F.I.V.)/Court Commissioner further mentions: "Findings:Built Up area as in the registered agreement : 340.00 sq. ft. Built Up area after actual measurements :266.00 sq. ft. Carpet Area as per measurement is 193.00 sq. ft."

SANCTIONED plan also mentioned about the same in the above said terms.

THE Kalpak Architects vide letter dated 5.4.2004 has certified as under: "This is to certify that the Construction Work of the Residential and Commercial Building on plot No. Z -9, Shahabaj, Belapur, Navi Mumbai, is 1000% completed. Under my supervision according to the typical floor plan which is attached with registered Agreement for sale, approved plan by NMMC and specification and the same is within the restriction and stipulations laid by the approving authority."

MOST importantly, the occupancy certificate dated 25.1.2005 runs as follows: " OCCUPANCY CERTIFICATE Read

1) Letter of Commencement Certificate No/NRV/C.C./50/2003/1870/2003/Dated 24.02.2003.

2) Letter of Navi Mumbai Corporation Circular dated 29.11.2002.

3) Letter of Architects, Kalapak, dated 31.07.2004 of Completion Construction of Building at New Mumbai on Plot No. Z -9, G.E.S., Located at Shahabat Belapur, of the owner Mohamed Amin Abdul Kadir Navarange was completed on 25.06.2004. Regarding this Architects Kalpak has issued the Completion Certificate. As per the terms and conditions in the Commencement Certificate dated 24.02.2003 and as per the Municipal Corporation Circular dated 29.11.2002 the action for recovery of all the dues is complete. Therefore, in this place Residential Construction Area = 271.14 Sq.Mt. Commercial Construction Area = 28.82 Sq. Mt. Enclosed Balcony Area = 45.11 Sq. Mt. Accordingly is permitted for use."

Sd/ - Deputy Director, Town Planner Navi Mumbai Corporation.

ALL these arguments and documents hardly go to prove that these flats measured 510 sq. ft. or 340 sq. ft. respectively. I see no ground to interfere with the orders of fora below. It is pertinent to note here that Deputy Director, Town Planner, Navi Mumbai Corporation has not mentioned in so many words that this construction was raised in accordance with the sanctioned plan. It only mentions that this construction was raised as per the terms and conditions in the certificate dated 24.2.2003 and does not say a word about the sanctioned plan.

APART from this, there is above said expert commissioner''s report, which clearly, specifically and unequivocally mentions that the total area is 266 sq. ft.

COMMENTING on the said report, the State Commission made the following observations: "On perusing the said report, it is patently clear that appellant has given lesser area of flat to the respondent and appellant has used substandard quality of material. In the registered agreement the built up area is shown as 340 sq. ft., whereas as per report of the Court Commissioner, the actual measurement shows 266 sq. ft. It is a clear cut case of deficiency in service on the part of the appellant. Forum below has rightly taken into consideration the above facts while allowing the complaint, which is perfectly legal and correct. Therefore order passed by the Forum below is sustainable in law. Appeal is devoid of any merits. In the results, we pass following order:

LEARNED counsel for the petitioner submits that they have filed objections in respect of this report. The same were not considered. This must be borne in mind that this revisional court is not a court of fact. If the fora below did not pay any attention to the objections raised by the petitioner, it should have led another solid and unflappable evidence. It should have produced the evidence of another expert. It is difficult to fathom why did not the sanction authority mention that these flats were made in accordance with the sanctioned plan. Those important words are missing. Learned counsel for the petitioner submits that only living room and bed room were measured and other parts of the flat, such as, bathroom, kitchen, gallery, common area were not measured. Even if these were not considered by the Local Commissioner, some other evidence should have been led.

LASTLY , learned counsel for the petitioner has invited my attention towards para 16 of the agreement which is reproduced as follows: "Upon possession of the said flat/shop being delivered to the Purchaser/s he/she shall be entitled to the use and occupation of the said flat/Shop. Upon taking possession of the said flat/Shop he/she shall have no claim against the Vendors/Developers in respect of any items of works in the Flat/Shop which may be alleged not to have been carried out or completed."

This clause is arbitrary, despotic, arrogant, illegal and unjust. Therefore, I clap no value to it.

LEARNED counsel for the petitioner further submits that the construction is as per the sanctioned plan, which was part of the agreement of sale. There is no such inkling in documents. The sanctioned authority should have mentioned clearly, specifically and unequivocally that it is as per the sanctioned plan.

LEARNED counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of Tulip Park Co -operative Housing Society Ltd. vs. M/s Sai Overseas Import and Export, civil appeal No. 13417 of 1996, decided on 14 -9 -1999. The facts of this case are different and are not applicable to this case.

NO other point was urged before me.

WE find no force in all these revision petitions.

ALL the six revision petitions are dismissed.