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.
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 firstname.lastname@example.org )
Times of India – 30 July 2018