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D. Syamala Kalyani & Others v/s M/s. Yasotheja Constructions, Eluru, Rep. By Its Prop. Madipalli Sesha

    First Appeal Nos. 284, 517 of 2013

    Decided On, 27 August 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, PRESIDING MEMBER

    For the Appearing Parties: D. Narasimha Rao, K. Radha, Advocates.



Judgment Text

1. Heard Mr. D. Narasimha Rao, Advocate, the complainant-appellants, in the Court Room and Mrs. K. Radha, Advocate, for the respondent-builders, through video conferencing.

2. Both these appeals arise from the judgement of State Consumer Disputes Redressal Commission, Andhra Pradesh, dated 01.03.2013 passed in Complaint Case No. 47 of 2012, partly allowing the complaint and directing, M/S Yasotheja Construction Eluru (the builder) to pay (i) Rs.1,98,000/, towards rent, for delay in handing over possession (ii) Rs.1, 59,000/- towards value of solar water heater for three flats, of the complainants (iii) Rs.5000/- as cost and (iv) to provide car parking area to complainant-2, for flat No. 4A.

3. D. Shyamala Kalyani and D. Rama Devi (the complainants) filed a complaint (registered as Complaint Case No. 47 of 2012) for direction to M/S Yasotheja Construction Eluru and its Proprietor (hereinafter referred to as the builder) (i) to allot one 2BHK, to complainant No. 1 in the same locality or to pay Rs.15,40,000/- along with interest @ 12% p.a. from the date of the complaint till its realization (ii) to pay Rs.3,00,000/- along with interest @ 12% p.a. from the date of the complaint till its realization, (iii) to pay Rs.5,00,000/- + interest of Rs.1,00,000/- along with interest @ 12% p.a. from 14.08.2010 till its realization (iv) to refund Rs.3,35,000/- + interest of Rs.18,425/- along with interest @ 12% p.a. from 02.11.2011 till its realization (v) to pay Rs.2,34,000/- towards rent from September 2009 to October 2011 for 3 flats at the rate of Rs.3,000/- per month, per flat along with interest @ 12% p.a. from 01.11.2011 till its realization, (vi) to install solar water heater to the three flats of the complainants or in alternative to pay Rs.1,59,000/- its costs (vii) to provide car-parking place for flat 4A, of complainant-2, (viii) to pay Rs.2000/- per month for hiring car-parking place, (ix) to issue Occupancy Certificate in respect of 3 flats after fully discharging the mortgage created in favour of Eluru Municipal Corporation, (x) to remove illegally constructed penthouse on sixth floor or to pay compensation of Rs.1,00,000/, (xi) to award litigation expenses and (xii) to grant any other for further relief which the Commission may deem fit and proper in the circumstance.

4. It has been stated in the complaint that the complainants and one Smt. Kanuri Leela were owners of 612 square yard land of R.S. No. & T.S. No. 14, Plot No. 41B, Door No. 24A-16-8, Municipal W.P. Ward, 28th Division, Allasani Peddana Street, Eluru, district West Godavari, in which the complainants had 392 square yard and Smt. Kanuri Leela had 220 square yard in their share. The complainants and Smt. Kanuri Leela entered into a Development Agreement dated 07.09.2009 (registered on 14.09.2007) with M/s Yasotheja Constructions (the builder), who was engaged in developing and constructing multi-story buildings. According to the agreement, the builder had to construct an apartment over the aforesaid land, in the name of “Sri Raj Jayalakshmi Residency”, in which, as per layout plan attached to the agreement, flats 1A (3BHK), 1B and 5B (2BHK) (total area 117 Sq. Yard) to complainant-1, flat 4C (2BHK) (total area 36 Sq. Yard) to complainant-2 and flats 1C and 2C (2BHK) (total 72 Sq. Yard) to Smt. Kanuri Leela, had to be allotted. The developer agreed to pay Rs. 3 lakhs to the complainants, as per practice in vogue and for that purpose gave post-dated 6 cheques (each of Rs. 50000/-) to them. In June 2008, the builder informed that Building Regulation was revised by Andhra Pradesh Government and a new layout plan of the apartment had to be submitted as previous plan was not sanctioned. According to the fresh layout plan, 5 flats, 3BHK (total area 8500 Sq. feet and 5 flats, 2BHK (total area 5,500/- Sq. feet) had to be constructed, over the aforesaid land. Out of 14000 Sq. feet of constructed area, share of the complainants and Smt. Kanuri Leela was 36% i.e. 5100 Sq. feet. Total 3150 Sq. feet fell in the share of the complainants, while area of the flats allotted to them was 3900 Sq. feet. The owners also agreed to pay the difference value of the constructed area to the developer (exceeding 36% of the total area of their share). A Supplementary Agreement dated 23.06.2008 was executed between the parties, in which D. Shyamala Kalyani was allotted two flats i.e. flats A (3BHK) & B (2BHK), on first floor, D. Rama Devi was allotted flat 4B (2BHK) and Smt. Kanuri Leela was allotted flats 2B & 3B (both 2BHK). Municipal Corporation Eluru approved layout plan on 13.07.2009. Thereafter, the apartment was constructed. The builder informed that cost of the construction came to Rs.1400/- per Sq. feet and the complainants were asked to pay Rs.10.50 lakhs for the constructed area, exceeding their share. Out of which Rs.5 lakhs was paid in cash on 14.08.2010 and Rs.4.5 lakhs was paid through cheque on 02.05.2011. The builder handed over the possession of the flats to the complainants on 30.10.2011. The builder also provided additional facilities of 2 air conditioners of Rs.50,000/-, plaster of Paris in flat A of Rs.17,000/- and modular kitchen of Rs. 75,000/- and waived Rs. one lakh of construction cost of excess area. After taking possession over the flats, the complainants noticed that the builder was constructing a pent-house. On 25.12.2011, the builder allotted 10 car parking places in stilt area, out of which, complainant-2 was not allotted any car parking place, for her flat 4B. When the builder was asked for car parking place of complainant-2, then he informed that in that area they were constructing pent-house. The complainants gave legal notice dated 31.12.2011 in this respect. Although notice was served on 04.01.2012 but the builder did not give any reply. The complainant also moved a representation to Municipal Corporation, in respect of illegal construction of pent-house. Thereafter, they filed Writ Petition No. 1152 of 2012, in High Court, Andhra Pradesh, which was disposed off with direction to Commissioner, Municipal Corporation Eluru to decide the representation of the complainants but no order has been passed on their representation. In the meantime, the builder completed the construction of pent-house and sold it to Sri Bethapudi Bala Koti Prabhakara Lingam. The complainants got inspection of their flats A, B and 4B through one Mr. V.V.H. Moses, who issued a certificate dated 05.04.2012, from which it has been noticed that the builder has constructed flats over lesser plinth area than sanctioned layout plan and selling more area than the actual constructed area. The complainants were given 1352.78 Sq. feet less area than the area mentioned in their sale deeds dated 14.06.2011 and 15.12.2011. Inclusion of common area and parking area in the plinth area is contrary to development agreement and the law. In the total area as mentioned in the sale deeds of the complainant they were entitled to one more flat of 2BHK, which cost would be Rs. 15.4 lakhs. Complanant-2 was paying rent of Rs.500/- per month from December, 2011, for car parking. The builder delayed the completion of the construction for more than 22 months, for which he was liable to pay delayed compensation. Under the agreement, the builder had to install solar water heater, which was not provided. On these allegations, the complaint was filed.

5. The builder filed his written version on 17.07.2012 and contested the complaint. In written statement, they admitted that execution of Development agreement dated 07.09.2007 (registered on 14.09.2007) and Supplementary Agreement dated 23.06.2008, between the parties, for construction of apartment on 612 Sq. yard land aforementioned. They stated that on 14.09.2007, a Memorandum of Understanding was also executed between the parties, under which 36% of constructed area was given in the share of the owners and 64% of the constructed area was given in the share of the builder. The owners had to pay Rs.1200/- per Sq. feet and the builder had to pay Rs.1100/- per Sq. feet, in case the area of construction exceeds to the area of their share. The builder handed over post-dated six cheques of Rs. 3 lakhs to the owners, towards the tentative costs of excess area, as per layout plan. Government of Andhra Pradesh changed the Rules relating to construction of Apartments vide G.O. Ms. No. 738 dated 03.10.2007 and G.O. Ms. No. 302 dated 15.04.2008, due to which, layout plan of the apartment, as submitted earlier, was not sanctioned. According to the changed Rules relating to the construction of Apartment, only 10 flats could be constructed over the land of the complainants and Smt. Kanuri Leela. Therefore, the parties entered into a Supplementary Agreement dated 23.06.2008, in which flats A & B were allotted to Smt. D. Shyamala Kalyani, flat 4B was allotted to D. Rama Devi and flats 2B & 3B were allotted to Smt. Kanuri Leela, according to fresh layout plan of the Apartment. Vide clause 6, both the parties agreed to abide other terms and conditions of agreement dated 07.09.2007 and Memorandum of Understanding dated 14.09.2007. Fresh Layout plan was sanctioned on 13.07.2009. As per sanctioned layout plan 1068.20 Sq. meter, for floor area, 112.8 Sq. meter, for common area and 1181 Sq. meter, for stilt area for car parking, were located. Later on the builder applied for a revised layout plan, which was sanctioned on 17.06.2010, in which 1186.70 Sq. meter, for floor area, 128 Sq. meter, for common area were located. The builder completed the construction and handed over possession of the flats to the complainants on 30.10.2011. The complainants verified the constructions, electrical work, sanitary, bathroom fitting & lift etc. and executed letter dated 01.11.2011, relating to their satisfaction in this respect. The builder also provided additional benefits of 20 K.V. generator of Leyland company instead of 15 K.V, all the doors and windows were of teak wood and polished, plaster of Paris of the complainants 3BHK flat of Rs.35,000/- and modular kitchen of 3BHK flat of Rs.1,00,000/-, Hub & Chimney of Rs.28,000/- R.O. system of Rs.9,500/- for 3BHK flat, two Air Conditioners, All Cub boards of Rs.1,30,000/- for 3BHK and Rs.80,000/- for 2BHK flats. Technical problem of unheated water supply in lower floor, was experienced in solar water heater, as such electric geysers were provided with the consent of the owners, in their flats. As per revised layout plan of the apartment, 3150 Sq. feet of constructed area was falling in the share of the complainants but they chose one 3BHK and two 2BHK flats and get total 1214.70 Sq. meter of the constructed area, which was in excess of their 5/8 of 36% share as such they were required to pay the cost of excess constructed area at the rate of Rs.1400/- per Sq. feet, for which they paid Rs.5 lakhs on 14.08.2010 and Rs.4.5 lakhs on 02.05.2011. Rs. one lakh was still due. In order to avoid, the legal payment of the builder, they moved frivolous application before Municipal Commissioner for cancellation of layout plan and gave legal notice dated 31.12.2011, making huge illegal demand and threats of criminal prosecution. As per agreement dated 07.09.2007 (registered on 14.09.2007), the owners got 36% area of car parking, which was given to them on 26.11.2011. Now the complainants were illegally demanding one additional car parking space for complainant-2. Opposite Party-2 had no concern with opposite party-1 and she has been illegally made party in the complaint. The surveyor’s report dated 05.04.2012 was incorrect. The complainants voluntarily executed letter of satisfaction dated 01.11.2011 as such the complaint is not maintainable and has been filed with malafide intension.

6. The complainants filed their Rejoinder Version, in which facts stated in the complaint were reiterated. The complainants filed Affidavit of Evidence of D. Shyamala Kalyani (PW-1), V.V.H. Moses (PW-2), Manikyala Rao Varide (PW-3) and D. Rama Devi (PW-4). The builder filed Affidavit of Evidence of Madipalli Tejo Venkata Manikya Ratnakar (DW-1). Both the parties filed their documentary evidence, details of which have been given in the Appendix of the judgment of State Commission. Both the parties filed their written arguments and additional written arguments. State Commission, after hearing the parties, by judgment dated 01.03.2013, found that the complainants failed to prove that there was any practice in vogue under which post-dated six cheques (each of Rs.50,000/-) was given to them. Rather these cheques were given as per memorandum of understanding and previous layout plan, as area of construction of the share of the builder was likely to exceed 64% of their area. Pent-house was constructed as per Development Agreement and sanctioned layout plan and was not illegal. Issue as to whether the complainants were given less area than the area mentioned in sanctioned layout plan could not be decided by the State Commission, in this summary proceeding. As per Development Agreement, solar water heater connection has to be provided in all the flats but the builder has not provided it as such the complainants were entitled to Rs.1,59,000/- for installation of solar water heater. The construction was not completed and possession was not handed over within 24 months with grace period of three months as such the builder was liable to pay Rs.1,98,000/- as rent to the complainants for the period of January, 2010 to October, 2011. The complainants were not entitled to any money for mortgage. Complainant-2 was entitled to car parking space. On these findings, the complaint was partly allowed. Both the parties are aggrieved by the order of State Commission and filed their separate appeals, which were consolidated and heard together.

7. The counsel for the complainants submitted that as per revised layout plan total plinth area of 3BHK flat was 132.8 Sq. meter and 2BHK flat was 80.76 Sq. meter, while the actual constructed area of 3BHK flat is 101.97 Sq. meter and 2BHK flat is 65.67 Sq. meter. The builder has charged the complainants for the area of revised layout plan, for their three flats and took Rs.9.5 lakhs on false representation. This fact was proved from Report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2). These evidence remained un-rebutted by the builder, from which, unfair trade practice done by the builder has been proved. State Commission has illegally declined to decide this issue on the pretext that it requires examination of the parties, the surveyor and physical verification. Under Section 24 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987, sale of common area and common facilities has been prohibited. Therefore, the builder cannot charge any extra amount from the complainants, who are actual owners the land, on which, the apartment was constructed in the garb of common area and common facility. The complainants are entitled for refund of Rs.9.5 lakhs along with interest. The construction on less area than the area mentioned in sanctioned layout plan was illegal. As per registered Development Agreement dated 07.09.2007, the complainants were allotted 4 flats but the builder got Supplementary Agreement dated 23.06.2008 by misrepresentation, in which they were allotted 3 flats. Registered Development Agreement dated 07.09.2007 has an overriding effect on Supplementary Agreement dated 23.06.2008 which is an unregistered document. The complainants are entitled to one more 2BHK flat or its cost. At the time of Development Agreement dated 07.09.2007, the builder gave post-dated six cheques (each of Rs. 50,000/-) as per practice in vogue. On the assurance of the builder, these cheques were not encashed at that time. Now after completion of construction, the complainants are entitled to Rs. 3 lakhs, along with interest from 07.09.2007. The builder has illegally constructed pent-house and sold it. The complainants are entitled for the charges for its demolition. Complainant-2 was entitled for car parking space. State Commission has illegally failed to award any compensation for mental agony, suffered by the complainants.

8. In reply to the aforesaid arguments, the counsel for the builder submitted that no reliance can be placed upon Report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2) which are apparently false, inasmuch as width of 3BHK flat is equal to length of 2BHK flat on the spot as well as in sanctioned layout plan but in the report dated 05.04.2012 width of 3BHK flat was shown as 37 feet and length of 2BHK flat was shown as 30 feet 4 inch. Further, in between 3BHk flat and 2BHK flat there was common area and common facilities viz. lobby for the two flats, stair case and lift etc. but neither in the report nor in Affidavit of V.V.H. Moses (PW-2), these were shown or taken into account. The builder has also filed a report of Licensed Architect dated 01.03.2016, along with written submission in First Appeal No. 517 of 2013, in which no difference has been found on the spot between sanctioned layout plan and actual construction in any respect. The builder has developed common area and common facilities for use of all the flat owners in the apartment. Although, the builder cannot transfer common area and common facilities but it can realize its development cost in equal proportion from all the flat owners, which is common practice throughout the country. There is no illegality in it. Vide clause-7 of Development Agreement dated 07.09.2007, the parties agreed for entering into supplementary agreement to meet out any future contingency. Government of Andhra Pradesh changed the Rules relating to construction of Apartments vide G.O. Ms. No. 738 dated 03.10.2007 and G.O. Ms. No. 302 dated 15.04.2008, due to which, layout plan of the apartment, as submitted earlier, was not sanctioned. According to the changed Rules relating to the construction of Apartment, only 10 flats could be constructed over the land of the complainants and Smt. Kanuri Leela. Therefore, the parties entered into a Supplementary Agreement dated 23.06.2008, in which flats A & B were allotted to Smt. D. Shyamala Kalyani, flat 4B was allotted to D. Rama Devi and flats 2B & 3B were allotted to Smt. Kanuri Leela, according to fresh layout plan of the Apartment. The Supplementary Agreement dated 23.06.2008 was acted upon, inasmuch new layout plan was submitted/sanctioned and construction was raised. After taking possession over the flats, which were constructed according to this Supplementary Agreement, the complainants are estopped from challenging its validity. The construction of the apartment was delayed due to change of apartment construction rules due to which earlier layout plan was not sanctioned. After issue of G.O. Ms. No. 302 dated 15.04.2008, Mr. Damaraju Narsimha Rao, who is husband of complainant-1 and an advocate consulted several licensed architect as he was bothering due to reduce of number of the flats, which also took sufficient time. When, several architect agreed with the layout plan of the builder, then he permitted the builder to apply for layout plan which was sanctioned on 13.09.2009. On completion of the construction, the builder applied for issue of Occupancy Certificate, which was issued on 09.06.2011. The owners asked the builders for extra facilities of (i) Plaster of Paris, (ii) Modular kitchen, (iii) Hub & Chimney, (iv) R.O. system, (v) Air conditioners and (vi) All Cub boards, which has been provided by the builder, which further delayed delivery of possession. Possession of the flats were delivered on 30.10.2011, which was well within 2 years (completion period) and 3 months (grace period), from the date of sanction of layout plan. Delay was beyond the control of the builder as the government has changed the construction rules due to which earlier layout plan was not sanctioned and thereafter, delay was caused for providing extra facility to the complainants. They are not entitled for delayed compensation. The parking place was constructed in stilt area. Under Clause-33 of Development Agreement dated 07.09.2007, the owners (including Smt. Kanuri Leela) were entitled to 36% of the area of car parking place. Which area has been allotted and parking places of different flats were also allotted. The complainants were given possession of the car parking place in stilt on 26.12.2011. There is no allegation in the complaint that the owners (including Smt. Kanuri Leela) were not in possession to 36% of the area of car parking place in stilt. Award of rent for car parking place and direction for giving car parking place to her was illegal. Technical problem of unheated water supply in lower floor, was experienced in solar water heater, as such electric geysers were provided with the consent of the owners, in their flats as well as all other flats. After installation of electric geysers and taking possession with full satisfaction, now the complainants are dishonestly claiming cost of solar water heater. Due to delay in construction, cost of construction has increased due escalation of price as such instead of Rs.1200/- per Sq. feet, the builder has charged Rs.1400/- per Sq. feet for the excess area, exceeding to 36% area of the owner. The complainants agreed for it and paid Rs. 9.5 lakhs on 14.08.2010 and 02.05.2011. One lakh remained to be paid. Now they are illegally demanding for refund of this money. Although they are liable to pay Rs. one lakh, towards excess area of the construction, Rs. 3 lakhs, the security money and Rs. 3 lakhs for extra amenities. Award of State Commission is illegal and is liable to be set aside.

9. I have considered the arguments of the counsel for the parties and examined the record. The Consumer Protection Act, 1986 (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233.

10. State Commission has illegally declined to decide the issue relating to the construction being on less area than the sanctioned area.

11. According to the complainants as per revised layout plan total plinth area of 3BHK flat was 132.8 Sq. meter and 2BHK flat was 80.76 Sq. meter, while the actual constructed area of 3BHK flat is 101.97 Sq. meter and 2BHK flat is 65.67 Sq. meter, which is proved from Report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2). A perusal of this report and layout plan shows that report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2) have not taken into account the common area and common facilities viz. lobby for the two flats, stair case and lift etc., which are in between 3BHK flat and 2 BHK flat on every floor. Width of 3BHK flat is equal to length of 2BHK flat in sanctioned layout plan but in the report dated 05.04.2012 width of 3BHK flat was shown as 37 feet and length of 2BHK flat was shown as 30 feet 4 inch as stated in Affidavit of Evidence of Madipalli Tejo Venkata Manikya Ratnakar. The builder has filed a report of Licensed Architect P.V. Siva Kumar dated 01.03.2016 and sanctioned layout plan, along with written submission in First Appeal No. 517 of 2013, in which no difference has been found on the spot between sanctioned layout plan and actual construction in any respect. The builder has obtained Occupancy Certificate dated 09.06.2011, which also raises a presumption that the construction was raised in accordance with sanctioned layout plan. In the circumstances, no reliance can be placed upon Report dated 05.04.2012 (Exb.A-4) and Affidavit of Evidence of V.V.H. Moses (PW-2). The complainants have failed to prove that there was unfair trade practice or deficiency in service by the builder.

12. Vide clause-7 of Development Agreement dated 07.09.2007, the parties agreed for entering into supplementary agreement to meet out any future contingency. Government of Andhra Pradesh changed the Rules relating to construction of Apartments vide G.O. Ms. No. 738 dated 03.10.2007 and G.O. Ms. No. 302 dated 15.04.2008, due to which, layout plan of the apartment, as submitted earlier, was not sanctioned. According to the changed Rules relating to the construction of Apartment, only 10 flats could be constructed over the land of the complainants and Smt. Kanuri Leela. Therefore, the parties entered into a Supplementary Agreement dated 23.06.2008, in which flats A & B were allotted to Smt. D. Shyamala Kalyani, flat 4B was allotted to D. Rama Devi and flats 2B & 3B were allotted to Smt. Kanuri Leela, according to fresh layout plan of the Apartment. The Supplementary Agreement dated 23.06.2008 was acted upon, inasmuch new layout plan was submitted/sanctioned and construction was raised after expending huge money. After taking possession over the flats, which were constructed according to this Supplementary Agreement, the complainants are estopped from challenging its validity. The complainants are not entitled to one more 2BHK flat, in view of Supplementary agreement dated 23.06.2008. Supreme Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division, (1996) 4 SCC 704 and Secretary Bhuwneshwar Development Authority Vs. Susanta Kumar Mishra, (2009) 4 SCC 952, has held that the agreement between the parties are binding upon them.

13. Under Section 24 of Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987, sale of common area and common facilities has been prohibited. For the use of flat owners, in the apartment, the builder has to develop common area and common facility. In the present case also, the builder has developed common area and common facilities for use of the flat owners in the apartment. Although, the builder cannot transfer common area and common facilities but it can realize its development cost in equal proportion from all the flat owners, which is common practice throughout the country. Therefore, inclusion of cost of common area, for its realization, in the area of the flats, in equal proportion, is not illegal.

14. At the time of Development Agreement dated 07.09.2007, the builder gave post-dated six cheques (each of Rs.50,000/-). According to the complainants this amount was given as per practice in vogue. On the assurance of the builder, these cheques were not encashed at that time. Now after completion of construction, the complainants are entitled to Rs.3 lakhs, along with interest from 07.09.2007. According to the builder, these cheques were given under Memorandum of Understanding dated 14.07.2007 as according to previous layout plan, area of construction of the flats falling in the share of builder was likely to increase to 64% of his area and it was agreed that the builder would pay Rs.1100/- per Sq. feet for excess area. The case of the builder appears to be more convincing inasmuch as if this amount was given to the owner as practice in vogue, there would have been no reason for not encashing these cheques at that time. Area of the construction falling in the share of the builder has been reduced in changed layout as such these cheques were not encashed. The complainants are not entitled for this amount.

15. Under Clause-33 of Development Agreement dated 07.09.2007, the owners (including Smt. Kanuri Leela) were entitled to 36% of the area of car parking place. Which area has been allotted and parking places of different flats were also allocated, in stilt. The complainants were given possession of the car parking place in stilt on 26.12.2011. There is no allegation in the complaint that the owners (including Smt. Kanuri Leela) were not in possession to 36% of the area of car parking place in stilt. Award of rent for car parking place and direction for giving car parking place to complainat-2 are illegal.

16. Under Memorandum of Understanding, the complainants and Smt. Kanuri Leela were required to pay for the excess area of construction, exceeding to their 36% of the area at the rate of Rs.1200/- per Sq. feet. Due to delay in construction, cost of construction has increased due escalation of price as such instead of Rs.1200/- per Sq. feet, the builder has charged Rs.1400/- per Sq. feet for the excess area, exceeding to 36% area of the owner. The complainants agreed for it and paid Rs.5 lakhs on 14.08.2010 and Rs.4.5 lakhs on 02.05.2011. One lakh remained to be paid. Now they are illegally demanding for refund of this money. They are not entitled for it.

17. So far as the compensation for delayed possession is concerned, the construction of the apartment was firstly delayed due to change of apartment construction rules due to which earlier layout plan was not sanctioned. Madipalli Tejo Venkata Manikya Ratnakar, in his Affidavit of Evidence has stated that after issue of G.O. Ms. No. 302 dated 15.04.2008, Mr. Damaraju Narsimha Rao, who is husband of complainant-1 and an advocate, consulted several licens

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ed architect as he was bothering due to reduce of number of the flats, which took sufficient time. When, several architect agreed with the layout plan of the builder, then he permitted the builder to apply for layout plan which was sanctioned on 13.09.2009. On completion of the construction, the builder applied for issue of Occupancy Certificate, which was issued on 09.06.2011. The complainants asked the builders for extra facilities of (i) Plaster of Paris, (ii) Modular kitchen, (iii) Hub & Chimney, (iv) R.O. system, (v) Air conditioners and (vi) All Cub boards, which has been provided by the builder, which further delayed delivery of possession. Possession of the flats were delivered on 30.10.2011, which was well within 2 years (completion period) and 3 months (grace period), from the date of sanction of layout plan. Delay was beyond the control of the builder as the government has changed the construction rules due to which earlier layout plan was not sanctioned and thereafter, delay was caused for providing extra facility to the complainants. The complainants are not entitled for delayed compensation. 18. Development Agreement dated 07.09.2007 provides Schedule-B property, in the share of the builder, which included pent-house. Therefore, it cannot be said that the pent-house was constructed in unauthorised way. So far as the allegation that pent-house was not constructed according to sanction layout plan, is concerned, the complainants have already made a complaint in this respect to Municipal Commissioner. Construction of pent-house is neither un-authorise nor unfair trade practice. 19. So far as the claim for the value of solar water heater is concerned, the builder has stated that technical problem of unheated water supply in lower floor, was experienced in solar water heater. When this fact was brought to the notice of the complainants, they agreed for installation of electric geysers. As such electric geysers were provided with the consent of the owners, in their flats as well as all other flats. After installation of electric geysers and taking possession with full satisfaction letter was given on 01.11.2011. Now the complainants are claiming cost of solar water heater in order to avoid legal payments of the builder. In view of satisfaction letter dated 01.11.2011, issued by the complainants, there is no reason to disbelieve the version of the builder. The complainants are not entitled for cost of solar water heater. 20. So far as other prayers in the complaint are concerned, these amenities have not been agreed in Development Agreement or Memorandum of Understanding as such the other relief claimed in the complaint cannot be granted. O R D E R In view of aforementioned discussions, First Appeal No.284 of 2013 is partly allowed. The order of the State Commission relegating to the complainants to pursue their remedy in respect of construction being on lesser area than the area as mentioned in the sanctioned lay out plan is set aside. First Appeal No.284 of 2013 is dismissed for rest of the reliefs and First Appeal No. 517 of 2013 is allowed. The order of State Consumer Disputes Redressal Commission, Andhra Pradesh, dated 01.03.2013 passed in Complaint Case No. 47 of 2012, is set aside. Complaint Case No. 47 of 2012 is dismissed. If the builder has deposited the decretal amount in pursuance of the order dated 01.03.2013, it shall be returned to the builder forth with. The parties shall bear their own costs.
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