Area under walls can’t be included in carpet area

The Ghaste family bought a ready flat in Dadar in a building constructed by Dialani Developers through Yogi Kripa Estate Consultants.

As per the agreement between the builder, and Shailendra Ghaste and his mother Suman as the joint purchaser, the flat, with a carpet area of 760 sq ft, was sold for Rs 25 lakh.

On taking possession on September 26, 1999, they found the flat was smaller. Shailendra took up the issue with the builder. As his grievance was not redressed, Shailendra, through his constituted attorney and father, Sakharam, filed a complaint before the Maharashtra State Commission against Jagdish Dialani, the sole proprietor of Dialani Developers, as well as against the estate agent. The complaint was contested. The builder claimed the shortfall in area was an inadvertent lapse—the term carpet area was used when the 760 sq ft actually referred to built-up area.

The state commission observed that the requirement to mention carpet area in the agreement was introduced in 2008 by an amendment to the Maharashtra Ownership of Flats Act. Since the agreement was executed earlier, the builder could not be faulted for mentioning the built-up area instead of the carpet area.

The commission posed the question: What should be accepted when there is a conflict between the typed clause of the agreement and the approved floor plan annexed to it?

Going by the plan approved by the municipal corporation, the flat had a built-up of 760 sq ft. Since this plan had been annexed to the agreement, the commission concluded the builder had not suppressed any fact, and dismissed the complaint.

Shailendra then approached the National Commission, which ordered the builder to get the carpet area re-measured. In his report, the architect included the area under the door jams and the walls.

The National commission observed that the area under the internal and external walls cannot be included in the carpet area. Similarly, the area under the door jams is already accounted for in the floor area and cannot be separately added to the floor space. It concluded that instead of 760 sq ft, the actual carpet area was only 713.39 sq ft, so the area was lesser by 46.61 sq ft. The commission held that the builder was liable for this deficiency and not the estate agent.

Accordingly, in an order delivered by Justice VK Jain on July 24, 2018, the National commission ordered Dailani Developers to refund the value of the deficient carpet area amounting to Rs 1,53,388. In addition, the builder was also directed to refund Rs 7,669 toward stamp duty on the deficit area of 46.61 sq ft. Both these amounts would also carry 9% interest from the date of the complaint till refund.

Conclusion: A builder can be held liable for manipulation in carpet area.

(The author is a consumer activist and has won the Govt.of India & the National Youth Award for Consumer Protection. His email is jehangir.gai.columnist@outlook.in )

Times of India – 30 July 2018

NCDRC rules areas under walls internal or external cannot be included in Carpet area, orders refund of the value of deficient area and stamp duty.