Dr. Inder Jit Singh, Presiding Member
The present Consumer Complaint (CC) has been filed by the Complainant against the Opposite Party as detailed above, with the following prayers:
"(a) To hold and declare the Opposite Party Developer to be guilty of deficiency in service as per the provisions of the Consumer Protection Act, 1986.
(b) To direct the Opposite Party developer to pay to the Complainant the sum of Rs.99,48,679/- (Rupees Ninety Nine Lakhs, Forty Eight Thousand Six Hundred and Seventy Nine) being the compensation for deficient carpet area as . per clause no. 9 of the tripartite alternate permanent accommodation agreement and the joint measurement taken by M/s. Harshad K. D., MCGM Licensed Architects Engineers with OP.
(c) To direct the Opposite Party Developer to hand over to the complainant Society 19 visitors' parking space as per the MCGM approved plans within a time bound schedule as decided by this Hon'ble Commission.
(d) To direct the Opposite Party Developer to complete the pending, incomplete and deficient works as per the report of M/s. Harshad K. D., the MCGM licensed Architects Engineers within a time bound schedule as decided by this Hon'ble Commission.
(e) In the event of failure to hand over 19 visitors' parking space and to complete the pending & incomplete deficient work within the specified period to direct the Opposite Party Developer to pay to the complainant Rs.41,01,000/-(Rupees Forty One Lakhs, One Thousand) as compensation and to carry out the said work on their own as per the Report and estimates given by the MCGM licensed Architect Engineers and the details given in the statement of claims.
(f) To direct the Opposite Party Developer to carry out waterproofing work on the terrace to stop leakage and seepage as well at any level of the structure and to hand over to the Complainant 10 years Warranty card from the date of O.C. against leakage and seepage as per the Development Agreement.
(g) To direct the Opposite Party Developer to obtain the Building Completion Certificate after complying with all the requirements of MCGM within a specified period of 2 months or such other period as may be decided by this Hon'ble Commission. In the event of non-compliance within the specified period to direct the Opposite Party Developer to pay to the complainant penalty of Rs.2,000/- per each days delay after expiry of the said date till final compliance.
(h) To direct the Opposite Party Developer to hand over to the Complainant all the original documents of title to the property, all approvals in originals concerning the construction of the Building, set of approved /completion plans, occupation /building completion certificate, certificate of handing over setback area to BMC and accordingly new P. R. card along with all other documents/certificates in the possession of the Opposite Party Developer.
(i) To direct the Opposite Party Developer to pay to the Complainant the sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) towards compensation for the mental agony and inconvenience suffered by the members of complainant due to the deficiency in service of the Opposite Party Developer.
(j) To direct the Opposite Party Developer to pay to the Complainant the sum of Rs.5,00,000/- (Rupees Five Lakhs only) being the Legal and other incidental expenses incurred by the Complainant.
(k) For such other and further relief as this Hon'ble Commission may deem fit and proper in the nature and Circumstances of the above numbered complaint."
2. Notice was issued to the Opposite Party on 20.09.2018 giving them 30 days' time to file their written statement. The OP filed the written version on 13.10.2021.
3. It is averred/stated in the complaint that:-
The Complainant Society had three buildings of ground plus three upper floors constructed in/or about 1977. Being very old and in a dilapidated condition, the Society was desirous of demolishing the existing buildings and redevelop the property by utilizing the available potentiality. The Society entered into Development Agreement dated 29.12.2009 and a Supplementary Agreement dated 15.01.2013 with the OP to demolish the existing buildings and to construct new buildings. As per the agreement, the re-development was to be completed within 18 months plus 6 months' grace period from the date of vacating or from the date of obtaining Commencement Certificate, whichever is earlier. OP entered into individual permanent Alternate Accommodation Agreement with the existing members . under which OP had agreed to provide the flats admeasuring 735 sq.ft. carpet area with covered parking free of cost to the existing 48 members with other amenities and in case of deficient variation in the carpet area in any member (s) flat, OP agreed to pay compensation as per ready reckoner plus 50% of such deficient variance at the time of possession. It also agreed that if there is any excess area to be ignored. In May 2015, the OP started handing over possession on completion of construction. Occupancy Certificate was received on 04.09.2015. On receiving the possession, the members observed variance in the carpet area and the same was brought to the notice of the OP. The Complainant appointed M/s Harshad K.D., Architects 8i Engineers to carry out physical measurement, who carried out the measurement in the presence of OP's representatives of the flats (as averred by the Complainant in the Complaint) on 2nd and 5th floors of all the 3 wings on 23.05.2015 and apply average of it to other flats in vertical position and submitted the report. On 04.07.2017, the Complainant sent the report to OP Developer and requested for payment of compensation on the deficient variation in accordance with clause 9 of the Individual Tripartite Agreements. The OP requested the Society for giving him an opportunity to present his views in front of all the members. Accordingly, Special General Body Meeting was held and OP's representative was given the opportunity to present their views before the members. But there was no positive response to the compliance of the terms and conditions of the Agreement. Hence, the Complainant Society has filed Complaint before this Commission.
4. OP in their written statement/reply stated that:-
i. In 2007-2008, the Complainant Society approached the OP and represented itself as the owner and in possession of the land bearing CIS No. 282 together with three buildings (Wings A, B and C), known as 'Rajat Dhaulagiri', located at Shahaji Raje Marg, Vile Parle (East), Mumbai. The complainant represented that the said three buildings have been constructed in or about the year 1971 and that each building comprised of ground floor plus three upper floors, having a total of 47 residential apartments (with carpet area of 540 sq.ft.each) and one dispensary. The Complainant Society expressed interest in engaging the services of the OP for demolition of the building and redevelopment of the property by utilizing the available potentiality of additional Floor Space Index (FSI) as per law.
ii. Thereafter, certain disputes and differences arose between the OP and the Complainant Society and the OP filed a Civil Suit against the Complainant . Society before the Civil Court at Goregaon, Mumbai in February 2008. During the pendency of the said Civil Suit, the OP furnished proposal for redevelopment of the Property in July 2008. The members of the Complainant Society accepted in the Annual General Meeting of the Society held on 10.08.2008. The said Civil Suit was finally disposed off on 18.11.2008 by recording consent terms between the parties.
iii. Subsequently, on 29.12.2009, a Development Agreement was executed between the parties, in terms of which the development rights in respect of the property stood vested with the OP. On the basis of the representations made by the Complainant Society, the OP agreed to redevelop the Property in accordance with the stipulations recorded in the Development Agreement.
As per the Agreements, the OP undertook to demolish the existing buildings and construct 71 new apartments along with provision for car parkings and other specified amenities. Out of the 71 new apartments, the OP agreed to hand over possession of 48 new apartments having carpet area of 630 sq.ft, each to the members of the Complainant Society, as per Clause 3 (v) of the Development Agreement. As per Clause 13 of the Development Agreement, the OP was entitled and at liberty to sell, transfer and handover possession of the remaining 23 new apartments to prospective buyers in its discretion, after handing over possession of 48 new apartments to the Complainant Society for its members.
iv. As per Clause 4 of the Development Agreement, the OP was entitled to allot the remaining car parking spaces to the prospective purchasers of the 23 new apartments. After execution of Agreement, the OP obtained the requisite approvals, sanctions and permissions for redevelopment of the Property from the regulatory authorities. As per Clause 12(g) of the Development Agreement, the redevelopment plan proposed by the OP was furnished to the Complainant for approval, along with particulars of the flat area and other relevant details and was duly approved by the Complainant in a General Body Meeting.
v. In addition to the Development Agreement executed between the Society and OP, separate Tripartite Agreements were executed between the Society, the OP and each of the then existing 48 apartment owners/members of the Society. Under Recital (H) of the Tripartite Agreement, it is recorded that on account of the amendment to the Development Control Regulations, 1991 in the year 2012, fungible FSI had been generated. In light of the above, in modification of the 630 sq.ft, carpet area originally stipulated in respect of each apartment in the Development Agreement, the OP agreed to construct and hand over possession of new apartments having 735 sq.ft, carpet area each to the 48 members of the Complainant Society, as recorded in Clause 7 of the Tripartite Agreement. Under Clause 8, it was recorded that each member of the Society had carefully perused the building plans of the new apartments having 735 sq.ft, carpet area each and had duly approved the said proposed building plans.
vi. On 15.01.2013, in partial modification of the provisions of the Development Agreement, a Supplementary Agreement was executed between the Society and the OP, wherein it was agreed that each member of the Society would be entitled to a new apartment having 735 sqft. carpet area. In terms of Clause 3 of the said supplementary agreement, the area calculation plans of all new apartments (having 735 sq.ft, carpet area each) were approved by the General Body of the Complainant Society.
vii. Clause 6 of the Supplemental Agreement stipulated that all the 48 existing members of the Society will be given covered parking space on podium and stilt only. The balance parking in basement, stilt or podium will be allotted to 23 new members, the remaining parking, if any, will be reserved for the guest parking. The remaining parking places will be available to the Developer for allotment.
viii. The OP had agreed to pay compensation to the Complainant Society and its 48 original members towards rent, shifting charges, brokerage, refundable deposits and corpus payments as stipulated under the Agreements. The basis for computation of compensation was the carpet area of the old apartments, i.e. 540 sq.ft, as represented by the Complainant Society and its 48 original members. In or about May 2015, the OP completed the redevelopment of the property, in discharge of its obligations under the Agreements. Accordingly, the OP proceeded to issue Possession letters to all 48 members of the Complainant Society. In pursuance thereof, all the 48 members of the Society inspected their respective new apartments and car parking spaces without demur. The Complainant unilaterally appointed M/s Harshad KD, Architects to calculate the carpet area of the newly constructed apartments without consulting the OP. On 04.07.2015, the Complainant Society furnished a Report dated 23.05.2015 on carpet area measurements, unilaterally prepared at the behest of the Complainant Society by M/s Harshad KD, Architects. As per the report, measurements were unilaterally undertaken in 10 apartments each of the 2nd and 5th floors only and carpet area of all the 48 apartments were not physically measured. The OP responded to the said letter informing the Society that the Report has been forwarded to the Project Engineer of the OP for assessment and joint verification. The Complainant has deliberately not placed on record the OP's response dated 13.07.2025.
ix. After assessment and verification of the Report dated 23.05.2015, the OP informed the Society that the methodology adopted for measurement of carpet area of the apartment was not acceptable to the OP, as it was contrary to the understanding between the parties regarding carpet area measurements and contrary to the standard industry practice in this regard. Thus, the carpet area measurements as unilaterally prepared and recorded were unequivocally disputed and denied by the OP.
x. The OP obtained the Full OC from the MCGMN in respect of all the new apartments. The OC issued by the MCGMN substantiates the position of the OP that the construction and re-development of the Project as carried out by the OP was in compliance with the approved and sanctioned building plans. Despite the OP obtaining the Full OC on 04.09.2015, the Complainant Society arbitrarily stalled the process of admission of purchasers of the 23 new apartments in the Society on one pretext or the other. On 04.01.2016, the Complainant Society addressed a letter to the OP, levelling allegations regarding allotment of car parking, while admitting that 48 car parking spaces had been handed over by the OP to the Complainant Society for its members as agreed. The Complainant unilaterally called upon the OP to hand over possession of additional 19 car parking slots for visitors and sought details of car parking spaces allotted to the purchasers of new apartments, which was contrary to the terms of the Supplemental Agreement dated 15.01.2013, as per which the OP was only obligated to hand over possession of 48 car parking spaces to the Complainant Society for its members and was at liberty to allot remaining car parking spaces to the purchasers of the 23 new apartments as its sole discretion.
xi. Thereafter, on 10.08.2016, the Complainant Society addressed a letter to the OP, admitting that the purported carpet area calculations as furnished by the Society vide letter dated 04.07.2015 had been disputed, denied and rejected by the OP. The Complainant reiterated its stance in relation to the deficient carpet area of the new apartments and furnished the carpet area measurements as computed by Harshad KD, Architects yet again, which had already been disputed, denied and rejected by the OP. The OP responded once again on 26.08.2016 calling upon the Society to facilitate admission of purchasers of new apartments as members into the Society. Again on 29.08.2016, the OP addressed to the Complainant Society, disputing the methodology adopted by the Society for carpet area measurements. It was clearly informed that in the report, the area of the RCC structures had not been accounted for/calculated and hence the said computations were inadequate. The Society was called upon to take into account the area of RCC structures within the respective premises as the said areas were part of the FSI as per the MCGM approved plans. The Society was also called upon to inform whether the original carpet area of the old flats (540 sq.ft.) included the area of RCC structures within the apartments. The Society did not furnish the information as requested and the issue of measurement of carpet area remained unresolved.
xii. The Complainant Society has approached this Commission with unclean hands and has not placed on record the correspondence exchanged between the parties. In order to constructively resolve the issue of carpet area measurements, the OP obtained a report dated 18.08.2017 from an independent architect, Mr. Pravin Kanekar, who certified the carpet area measurements on the basis of the OC issued by the MCGM on 04.09.2015.
xiii. Instead of resolving the issues with the OP, the Complainant issued a Legal Notice on 20.08.2017. OP responded to the said Legal Notice vide Reply Notice dated 05.10.2017, refuting all the allegations and averments.
xiv. The OP has complied with all the obligations under the Development Agreement, Tripartite Agreement and the Supplemental Agreement and carried out redevelopment of the property in terms thereof and in accordance with the sanctioned and approved building plans.
5. Heard counsels of both sides.
5.1 It is contended by the Complainant Society that the OP were to demolish the existing buildings and construct new buildings as per the terms and conditions agreed between the parties under the Development Agreement dated 29.12.2009 and Supplemental Agreement dated 15.01.2013. As per the said Agreements, apart from providing the flats admeasuring 735 sq.ft, carpet area free of cost to the existing 48 members, the OP also agreed to provide self-contained office with a toilet, Air-conditioned Club House, Fitness Centre along with basic amenities to accommodate 60 to 80 persons for meeting together at any point of time. Before the members vacated their premises, Supplementary Agreement was entered in view of the change in DCR Rules (Development Control Regulations) that came into effect from January 2012. It is further contended that series of discussions were held between the Complainant Society and the Developer and an express clause for discrepancy in carpet area was included in the registered individual tripartite agreement entered into between the parties i.e., the Developer, Society and the individual existing member of the Society. One Alternate Accommodation Agreement of Mr. Vasant Vasudeo Joshi & Mrs. Vrushali Vasant Joshi, existing member in respect of Flat No. B-19 was executed. Clause 9 of the said agreement clearly provides that the Developer will provide 735 sq. ft. of carpet area to each of the 48 existing members of the Society in the re-developed building. In case of any deficient variation in the carpet area in any member's flat, the Developer agreed to pay such member the compensation at the rate of ready reckoner price plus 50 per cent for such deficient variation, at the time of possession. It is further contended that the Developer was offered twenty three flats out of seventy flats for free sale with an understanding that all original members will be given one covered parking. In the building plans, submitted to the Society for approval before submission to MCGM, covered forty eight car parking for original members, twenty eight car parking for sale flats and nineteen car parking for visitors (Referred to Clause 4 of the Development Agreement). The said plan was approved by the MCGM. It is contended by the Complainant that while selling the flats, the developer has sold additional car parking from visitors' parking lot to the new flat purchasers in the redeveloped building without the consent of Society and has thus committed deficiency in service. It is further contended that after occupying their respective flats, the Members observed discrepancy in the carpet area of their flats with respect to the carpet area of 735 sq.ft, agreed to in their Alternate Permanent Accommodation Agreement. The Complainant appointed M/s. Harshad K.D., Municipal Licensed Architects & Engineers with the consent of the OP Developers, to take physical measurement of the flats allotted to the existing members and to submit a detailed report along with the report on the pending/incomplete/ deficient works with the estimated expenses for completing the said works. Accordingly M/s, Harshad K.D. carried out physical measurement and submitted its report. The said report was forwarded to the OP Developer vide letter dated 04.07.2015 and requested the OP to pay for the deficient variation as per the agreed terms. It is also contended that the Architect also submitted the estimated expenses of Rs.38,51,500/- for completing the pending, incomplete and deficient works. He has also recommended that there would be extra costs, which should be considered at 25% of the estimate for repair/rectification of the incomplete/deficient works. The OP Developer failed and neglected to comply with the terms and conditions agreed to in the registered Development Agreement, Supplementary Agreement and the Tripartite Permanent Alternate Accommodation Agreement. Further the OP Developer has also not obtained the Building Completion Certificate in spite of repeated requests. It is further submitted that the amount of compensation payable by the OP Developer on account of compensation for the deficient variation in the carpet area in accordance with clause 9 of the said Tripartite Agreements as per the physical measurement taken by M/s Harshad K.D. along with the representative of the OP Developers, which works out to Rs.99,48,679/-. In terms of Clause 4 of the Redevelopment Agreement executed with the Developers, the OP Developer had agreed to provide 48 covered parking to the original 48 members of the Society. Subsequently, on the basis of plan approved by MCGM as per revised DCR, 76 car parking slots for residents and 19 car parking for visitors were approved in IOD issued on 17.11.2012. It is further contended that the parking approved for visitors shall not be allotted to the flats for sale but should be handed over to the Complainant Society. It has been observed that the Developer had sold /allotted the 19 visitors' car parking space to the new flat purchasers in addition to their earmarked 28 parking space without the knowledge of the Complainant. There is no parking place available for the visitors' car parking. It is further contended that as per clause 14 of the Agreement, the OP Developer has agreed to construct the redeveloped building using good quality material to ensure that there are no issues in relation to leakages and seepages in the building during the monsoon. The OP Developer has also promised warranty for a period of ten years for such leakages and seepages for which the Opposite Party Builder have been deficient in providing their services and also have failed to comply with the statutory and contractual obligations as per the clauses of the Development Agreement.
5.2 It is contended by the OP Developer that the Complaint is not maintainable before this Commission. The Complainant is a Cooperative Group Hosing Society that availed the services of the OP free of cost and thus, there was no consideration involved in the services rendered by the OP. The Complainant does not fall within the definition of a "Consumer" under the 1986 Act. As per Section 2 (d) (ii) the 1986 Act, a consumer of a service is defined as any person who hires or avails any service for consideration and includes any beneficiary of such service. In the present case there has been no consideration paid by the Complainant Society or its members to the OP and in fact, the OP has made a total payment of approximately Rs.8.55 crores to the members of the Complainant Society towards interim rental charges, along with making payment for all ancillary costs associated with these members vacating their apartments during the redevelopment process, i.e., shifting charges, brokerage, and refundable deposits ("Relocation Charges"). As per Section 2 (o) of the 1986 Act, it is evident that services that are rendered free of cost cannot be included in the definition of 'Service' as provided thereunder. It is further contended that admittedly, in the present case the redevelopment of the Property has been done entirely at the cost of the OP with the members of the Complainant Society also being provided with the aforesaid Relocation Charges. It is further contended that it is settled law that there is no deficiency in service when the buildings are constructed as per the sanction plan and each apartment has the area as given in the Agreement and the Complainant had agreed not to raise any dispute regarding the saleable area. The OP obtained a Full Occupation Certificate from the Municipal Corporation of Greater Mumbai, which substantiates that the construction undertaken is in adherence to the sanctioned plans. (Relied upon the judgment passed by the Hon'ble Supreme Court in Tulip Park Cooperative Housing Society Ltd. Versus Sai Overseas Import & Export, reported at (1999) 8 SCC 588). It is further contended that each member of the Complainant Society was called upon to inspect their apartments with respect to the compliances of all the agreements. The possession of the apartments was handed over to each member of the Complainant Society only after they inspected the same and all the members of the Complainant Society accepted the possession without raising any objection and without demur and signed the Possession receipts confirming their satisfaction in this respect. The building plans were approved and passed by the members of the Complainant Society as per Clause 12 (g) of the Development Agreement. Hence, all allegations of discrepancy in the carpet area of the apartments were an afterthought, fabricated solely for the purpose of arm twisting the OP and stalling the process of admission of purchasers of new apartments as members of the Complainant Society. It is further contended that the Complainant appointed the Architect without the consent of the OP. The Report of the Architect was submitted to the OP despite all the members of the Complainant Society having taken over possession of their allotted apartments after due inspection. It is also contended that the measurements were taken by the Architect in a method contrary to the standard industry practice, wherein, the area of the Reinforced Cement Concrete (RCC) was not included in the total carpet area. As such, the Report is entirely unsubstantiated and ought to be entirely disregarded by this Commission. It is also contended that the OP addressed the issue of the disputed carpet area of the apartments in the General Body Meeting on 02.04.2017, which was attended by the members of the Complainant Society and the representatives of the Opposite Party. The members of the Complainant Society were satisfied with the factual position put-forth by the OP and did not raise any objections to the same. The fact that despite the OP communicating the minutes of the General Body Meeting held on 02.04.2017 to the Complainant Society, no objection of the same has been raised till date by any member of the Complainant Society. Vide letter dated 07.06.2017, the Complainant Society duly admitted and acknowledged that the position of the OP with regard to the carpet area has been explained to the members of the Complainant Society. Thus, there was no basis for the Complainant Society or its members to contend that the apartments were measured less than 735 sq.ft. It is also contended that the OP sought an unbiased report with regard to the carpet area from an Independent Architect. The independent architect engaged by the OP submitted its Report, which substantiated the fact that the carpet area of all the new apartments measures 735 sq.ft., which is in accordance with the OP's obligations under the Agreements and in consonance with the approved sanction plans. It is also contended that till date, the Complainant Society has not raised any objection to the Report and the findings contained therein. Thus, the Report further shows that there is no deficiency of service on part of the OP. Further it is contended that the new apartments constructed by the OP were in compliance with the approved and sanctioned plans on the basis of which the Municipal Corporation of Greater Mumbai issued a Full Occupation Certificate. Each member of the Complainant Society was called upon to inspect their apartments with respect to the compliances of the agreements and possession was accordingly handed over without any protest.
6. This case was heard at length on 26.12.2024, 19.06.2025 and finally on 25.09.2025, when both sides concluded their arguments and the judgment was reserved.
The orders dated 26.12.2024 and 19.06.2025 are reproduced below:
"Dated : 26.12.2024
ORDER
1. Heard learned counsels for both the sides in part. The Complainant, in his amended complaint, has inter-alia prayed for directions to the opposite party/developer to obtain the Building Completion Certificate. Although a full Occupation Certificate dated 04.09.2015 issued by MCGM is on record, counsel for the Complainant argues that this is not the same as the Building Completion Certificate. In this regard, he has drawn our attention to Section 3(i) of The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, (MOFA) 1963, which is reproduced below:
"3(i) not allow persons to enter into possession until a completion certificate where such certificate is required to be given under any taw, is duly given by the local authority (and no person shall take possession of a flat until such completion certificate has been duly given by the local authority)"
2. A perusal of the above said Section shows that the Completion Certificate is a pre-requisite for developer to allow possession, but the Section also states "where such certificate is required to be given under any law".
However, learned counsel for the Complainant has not been able to explain as to under what law, such a Completion Certificate is required.
3. In the present case, further the above stated Section also states "no person shall take possession of flat until such Completion Certificate has been duty given by the local authority." The learned counsel has not been able to explain as to why the possession was taken over by the allottees without Completion Certificate, in violation of provisions of this Section.
The hearing will continue on the next date.
Both the sides should come fully prepared and also file copies of all the relevant Acts/Rules/Regulations based on which, they wish to argue, at least two weeks before the next date of hearing, after exchanging copies with each other.
4. List the matter on 27.02.2025."
"Dated : 19.06.2025
ORDER
1. Hearing continued from where we left on the last date of hearing i.e. 26.12.2024. Prayers in the amended complaint were taken up one by one. Hearing could not conclude and will continue on the next date. Copy of the plan at page 152 of the paper book was supplied to the counsel for the OP during the hearing to enable him to study the same and respond to the contentions of the complainant based on these drawings / facts stated therein.
2. As regards prayer ( b) with respect to the deficient carpet area, OPs have drawn our attention to definition of carpet area as contained in section 2 (k) of Real Estate ( Regulation and Development ) Act, 2016, which defines the Carpet Area as follows, read with clarification of the Carpet Area as defined in 2 (k) vide circular No.4 of 2017 dated 14.06.2017 of Maharashtra Real Estate Regulatory Authority where following clarifications have been given :
2 (k) " Carpet Area" means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition wall of the apartment.
Explanation - For the purpose of this clause, the expression 'exclusive balcony or verandah area' means the area of the balcony or verandah, as the case may be, which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; and 'exclusive open terrace area' means the area of open terrace which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee.
Clarification of Carpet Area
Whereas there are various interpretations being given to the words "internal partition walls" and "external walls" by different professionals and Architects and therefore there is need to clarify the terms "internal partition walls" and "external walls" in order to have uniformity in the calculation of carpet area of an Apartment across all the projects being registered with MahaRERA.
For the purpose of the Real Estate (Regulation and Development) Act, 2016, "walls" would mean walls made of Reinforced Cement Concrete (RCC) or plain concrete or Shear wall(s) or wall made from bricks or blocks or pre-cast materials or drywalls or walls made of any material or composition of one or more of any of the materials and shall include column(s) within or adjoining or attached to the wall, Therefore, for the purpose of calculation of carpet area under clause 2(k) of the Rea! Estate (Regulation and Development) Act, 2016,
All walls which are constructed or provided on the external face of an apartment shall be regarded as "external wall".
All walls or independent columns constructed or provided within an apartment shall be regarded as "internal partition wall"
An illustration is attached herewith for clarification of the walls which are to be considered as "External Walls" and "Internal Partition Walls" with respect to an apartment and also of the area to be included and excluded while calculating Carpet area of an Apartment.
3. OP's counsel has drawn our attention to the report of the Architect engaged by the complainant to stress that even in this report there is an admission that area of the columns have been excluded. They have also drawn our attention to their Architect's report which is at page 51 of the Evidence to show that there is no shortfall in the carpet area of the allottees.
4. As regards prayer (b) when specifically questioned, counsel for the complainant submitted that the prayer for compensation for deficient carpet area calculated @ Rs.99,48,679/- is to be paid to the Society and not to the individual allottees. However, he could not give any satisfactory response as to even if it is established that there is deficient carpet area and any compensation is payable, why it should not be paid to the respective allottee in proportion of the deficit area received by them rather than to the Society.
5. As regards prayer ( c) for 19 visitors car parking space, counsel for the OP submitted that as per the agreement, each of the 48 allottee were to be given one parking space and same has already been given. This aspect is not in dispute by the complainant as well.
6. OP has drawn our attention to clause 4 (page 36), clause 13 (page 42) of the Development Agreement dated 29.12.2009 and clause 6 of the Supplementary Agreement dated 15.01.2013 ( page 108). Counsel for the OP states that he will respond with respect to the 19 visitors parking space on the next date.
7. As regards prayer (g) with respect to the Building completion completion certificate, as per order dated 26.12.2024, complainants were directed to explain as to under what clause, completion certificate is required other than Section 3 ( i) of the MOFA. They have not been able to show any other law under which such a completion certificate is required. On the other hand, counsel for the OP have reiterated that full Occupation Certificate dated 04.09.2015 (page 154) is the required certificate in compliance of MOFA and no further complete completion certificate is required to be obtained by them and this certificate also makes a mention that certified completion plan is attached.
8. As regards prayer (h) with respect to not receiving certain document from the developer, complainant has not been able to show any specific provision of the Act / Rules /Regulations or the Development Agreement / Supplementary Agreement under which various original documents / copies of such documents have to be handed over to the complainant. Further, even if they are entitled to some of these documents and OP has failed to provide the same, they have not been able to show us any communication to the Developer demanding any such document.
9. Hearing will continue on the next date i.e. 14.08.2025."
7. We have carefully considered the entire facts and circumstances in the light of the pleadings and contentions of the parties. In the paras that follow, we will take up prayers of the Complainant as contained in their amended Complaint dated 13.12.2017, one by one.
(a) To hold and declare the Opposite Party Developer to be guilty of deficiency in service as per the provisions of the Consumer Protection Act, 1986.
This has been taken up and discussed under each of the prayer.
(b) To direct the Opposite Party developer to pay to the Complainant the sum of Rs.99,48,679/- (Rupees Ninety Nine Lakhs, Forty Eight Thousand Six Hundred and Seventy Nine) being the compensation for deficient carpet area as per clause no.9 of the tripartite alternate permanent accommodation agreement and the joint measurement taken by M/s. Harshad K. D., MCGM Licensed Architects Engineers with OP.
(i) This issue was also considered at length on 19.06.2025 from both sides. This prayer is primarily based on the report of the architect engaged by the complainant society i.e. M/s Harshad K.D, whose report is available from page 156 onwards. After his first report dated 23.05.2015, he gave other reports on 05.11.2015 and 06.05.2017. We have carefully gone through these reports. The covering letters of these three reports are reproduced below:
(ii) It is based on these reports that the complainant society is alleging deficiency in service. On the other hand, the OPs relying on the report of the architect engaged by them i.e. M/s Pravin Kanekar (page 51 of the evidence of OP), contend that there is no shortfall in the carpet area of the allottees. After careful consideration of both the reports, other relevant records, and hearing both sides, and considering the definition of carpet area as per Section 2(k) of the Real Estate (Regulation and Development) Act, 2016, read with the clarification of carpet area as defined in Section 58, vide Circular No. 4 of 2017 dated 14.06.2017 of Maharashtra Real Estate Regulatory Authority, we are of the considered view that even the architect engaged by the complainant society has given no definite finding, in unambiguous terms, that there is a shortfall in the carpet area going by the strict definition of carpet area in accordance with the above stated provisions / circular. Hence, there is no sufficient evidence before us to conclude that the OP has provided deficient carpet area. Moreover, as already recorded in paragraph 4 of the order dated 19.06.2025, even if assuming there is any shortfall in the area of any allottees / flat owner when strictly measured in accordance with the definition of the carpet area, the complainant society has no right to claim any compensation for such deficient area, and only the concerned allottee / complainant can make such a claim. In this consumer complaint, only the complainant society is before us, which has made no such prayer that compensation for such shortfall, if found, shall be paid to the respective allottees / members of the society. Rather, when specifically questioned on 19.06.2025, they reiterated that such compensation for deficient area should be paid to the complainant society. Hence, we hold that this prayer lacks merit for want of sufficient, reliable, and cogent evidence to prove that the OPs have provided deficient carpet area than what was promised in the agreements signed between the parties.
(c) To direct the Opposite Party Developer to hand over to the complainant Society 19 visitors' parking space as per the MCGM approved plans within a time bound schedule as decided by this Hon'ble Commission.
(i) It is the case of the OP that as per the agreement, each of the 48 allottees was to be given one car parking space, and the same has already been given. This aspect is not in dispute by the complainant society as well. The provisions with respect to car parking are contained in Clause 4 and Clause 13 of the Development Agreement dated 29.12.2009 and Clause 6 of the Supplementary Agreement dated 15.01.2013. These clauses are reproduced below:
Clause 4 of the Development Agreement dated 29.12.2009
"The developers hereto hereby agree that the Developers shall hand over possession of 48 covered car parking spaces in the compound of the building/s of the Society (including podium/basement), to enable the Society to allot the same to its existing members on the terms and conditions as the Society may deem fit. The remaining car parking spaces will be available to the Developers to allot to the new flat purchasers and not to allot to any other person, other than the existing members and new flat purchasers. It is clarified that the 48 covered parking lots shall be provided by the Developers to the Society free of cost. The Developers shall also provide two wheeler parking in the Society premises free of cost to the existing members subject to availability of the space.."
Clause 13 of the Development Agreement dated 29.12.2009.
"13. The parties hereto hereby agree that after making provisions for allotment of 48 flats and agreed car parking spaces as mentioned in clause 4 above, in the compound of the Society's proposed building, the Developers will be at liberty to sell, transfer and dispose of the remaining fiats along with car parking space in the development of the said property to the prospective buyers thereof for such consideration and upon such terms and conditions as the Developers may deem fit. However, the draft of such agreement of sate of fiats by the Developers shall be first approved in writing by the Society. The Society and its individual members agree that upon the Developers selling the remaining flats the Society will enroll the new flat purchasers as members of the Society on such members paying to the Society a sum of Rs.350/- being the share money and entrance fee, and proportionate sinking fund deposit to be at par with the existing members of the Society and will admit the said new flat purchasers as members of the Society on receipt of the aforesaid amount. Such admission of membership shall, however, be after occupation certificate is received by the Developers from the B.M.C. and such flat purchasers shall in the possession of their respective flats only after existing members are put in the possession of their flats."
Clause 6 of the Supplementary Agreement dated 15.01.2013.
"AH the existing 48 members of the Society will be given covered parking space on podium & stilt only. The balance parking in Basement, stilt or podium will be allotted to 23 new members; the remaining parking if any will be reserved for the guest parking. The remaining parking places will be available to the developer for allotment."
(ii) The above stated clauses of the two agreements, read together, clearly state that the 48 covered car parking spaces in the compound of the buildings of the society (including podium / basement) are to be given to the society to enable it to allot the same to its existing members. The remaining car parking spaces are available to the developers to allot to the new flat purchasers and not to allot to any other person other than the existing members and new flat purchasers. In the present case, the developer's share of flats, other than the 48 to the existing owners, is 23 flats. Hence, by implication, the developer can retain only 23 number of parking spaces for allotting to the new flat purchasers. Clausel3 makes it clear that after making provisions for 48 car parking spaces for existing members, the developers will be at liberty to sell, transfer, and dispose of the remaining flats along with car parking spaces in the development of the said property to the prospective buyers. Further, Clause 6 of the Supplementary Agreement clearly states that the balance parking in the basement, stilt, or podium will be allotted to 23 new members, and the remaining parking, if any, will be reserved for guest parking. No doubt, this clause also states that the remaining parking places will be available to the developer for the allotment, a holistic reading of Clause 6 of the Supplementary Agreement clearly means that 48 parking spaces are to be allotted to existing members, 23 to the new members, and all remaining parking spaces have to be reserved for guest parking and OP developer is not entitled to sell any of these remaining parking spaces beyond 48 for existing members and 23 for new members.
(iii) It is the case of the complainant that the OP builder has created 19 such additional parking spaces, which have to be handed over to the complainant society as visitor parking spaces. In this regard, they have drawn our attention to some of the approved plans. We see some merit in such contentions and this prayer of the complainant society and are of the considered view that after earmarking 48 covered parking spaces for the existing allottees (which have already been handed over to the existing allottees) and 23 parking spaces for the new allottees, which are at the discretion of the OP builder to sell along with the flats to the new builders, the remaining available parking spaces, whatever their number, whether 19 or something less or more than this, have to be reserved as visitors parking for the common use of visitors of both the existing allottees as well as the new allottees. The OP builder has no right to sell or dispose of any other manner whatsoever such additional / remaining parking spaces beyond 48 and 23. Hence, this issue is decided in favour of the complainant society, and the OP builder is hereby directed to ensure that any parking space, whether covered or open, beyond the 48 allotted to the existing allottees and 23 allotted / sold / earmarked for the new allottees, shall be kept as a visitor parking spaces for use by the visitors of both the existing 48 allottees as well as the new 23 allottees.
(d) To direct the Opposite Party Developer to complete the pending, incomplete and deficient works as per the report of M/s. Harshad K. D., the MCGM licensed Architects Engineers within a time bound schedule as decided by this Hon'bie Commission.
This prayer is also based primarily on the report of the architect engaged by the complainant i.e. Harshad K.D., which is not a fully reliable and cogent evidence. Hence, in the absence of any definite, reliable and cogent evidence with respect to pending, incomplete, and deficient works in each of the flats, no specific relief can be granted under this prayer.
(e) In the event of failure to hand over 19 visitors' parking space and to complete the pending & incomplete deficient work within the specified period to direct the Opposite Party Developer to pay to the complainant Rs.41,01,000/- (Rupees Forty One Lakhs, One Thousand) as compensation and to carry out the said work on their own as per the Report and estimates given by the MCGM licensed Architect Engineers and the details given in the statement of claims.
In view of our decision under prayer (c), no further compensation is payable under this prayer.
(f) To direct the Opposite Party Developer to carry out waterproofing work on the terrace to stop leakage and seepage as well at any level of the structure and to hand over to the Complainant 10 years Warranty card from the date of O.C. against leakage and seepage as per the Development Agreement.
In the absence of any definite, reliable, and cogent evidence with respect to leakage and seepage on the terrace, no specific relief can be granted under this prayer.
(g) To direct the Opposite Party Developer to obtain the Building Completion Certificate after complying with all the requirements of MCGM within a specified period of 2 months or such other period as may be decided by this Hon'ble Commission. In the event of non-compliance within the specified period to direct the Opposite Party Developer to pay to the complainant penalty of Rs.2,000/- per each days delay after expiry of the said date till final compliance.
(i) This issue was considered at length after hearing both sides on 26.12.2024 and 19.06.2025, and our observations have been recorded in paragraph 7 of this order. The Occupation Certificate (OC), titled as 'Full Occupation Certificate, dated 04.09.2015 issued by Municipal Corporation of Greater Mumbai (MCGM) placed on record is reproduced below:
(ii) This certificate specifically states that it is based on reports of Licensed Architect, Licensed Supervisor, Licensed Consultant named therein and Chief Fire Officer. Permission to occupy has been given subject to a condition stated therein. After careful consideration of entire facts, the above stated Full Occupation Certificate and our observations recorded in order dated 26.12.2024 (reproduced in paragraph 7 above). We are of the considered view that this prayer lacks merit. Even going by complainant's contentions, if OP is at fault in giving possession without a Completion Certificate, the complainant(s) is I are also at fault in taking possession without a Completion Certificate as Section 3(1) of MOFA specifically stating that 'and no person shall take possession of a flat until such Completion Certificate has been duly given by the local authority'. The Complainants have not given any satisfactory explanation as to why the possession was taken over by the allottees without such Completion Certificate in alleged violation of provisions of this Section. Hence, subject to OP's compliance of condition stated in the said Full Occupation Certificate dated 04.09.2015, complainant society is not entitled to any relief under this prayer.
(h) To direct the Opposite Party Developer to hand over to the Complainant all the original documents of title to the property, all approvals in originals concerning the construction of the Building, set of approved /completion plans, occupation /building completion certificate, certificate of handing over setback area to BMC and accordingly new P. R. card along with all other documents/certificates in the possession of the Opposite Party Developer.
This issue was taken up on 19.06.2025, when both sides were heard. Paragraph 8 of the said order, which has already been reproduced in the preceding paragraphs, contains our observations on this issue. In view of this, the complainant society may, within three weeks of this order, list out all those documents, which are required by them with respect to project in question, which the OP builder under the law is obligated to provide to the complainant society, and deliver such a request under due acknowledgment to the authorized officer of the OP builder. Thereafter, OP builder shall, within a maximum of four Weeks, deliver copies of all such documents to the complainant society.
(i) To direct the Opposite Party Developer to pay to the Complainant the sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) towards compensation for the mental agony and inconvenience suffered by the members of complainant due to the deficiency in service of the Opposite Party Developer.
In view of our observations and findings in the preceding paragraphs, we hereby direct the OP developer to pay compensation of Rs.50,000/- to the complainant society for certain acts of deficiency in service, which have emerged out of the discussion and decision in the preceding paragraphs.
(j) To direct the Opposite Party Developer to pay to the Complainant the sum of Rs.5,00,000/- (Rupees Five Lakhs only) being the Legal and other incidental expenses incurred by the Complainant.
The complaint is partly allowed with litigation cost of Rs.25,000/- to the complaint society.
(k) For such other and further relief as this Hon'ble Commission may deem fit and proper in the nature and Circumstances of the above numbered complaint.
In view of our orders in the preceding paragraphs, no further directions are required and complainant society is not entitled to any other relief except those, which have been specifically allowed in the preceding paragraphs.
8. The Consumer Complaint No.2129 of 2017 is allowed/disposed off with directions/ reliefs as contained in preceding para.
9. The pending IAs, if any, also stand disposed off.
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