Builder's excess area charges cancelled as unfair trade practice, possession delay compensation awarded

The National Consumer Disputes Redressal Commission, New Delhi, partially allowed the complaint against a builder regarding delayed possession and excess area charges. The Commission held that the builder's demand for excess area payment was unjustified as no proper documentation or comparison between original and final approved plans was provided. The practice of charging excess area without transparency was deemed an unfair trade practice. The Commission cancelled the excess area demand and directed the builder to issue revised demand within 30 days, followed by possession handover within 30 days. Compensation was limited to the agreed Rs.7.50 per sq.ft. per month for possession delay, following SC precedent in DLF Homes Panchkula case.

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Issues Involved:
1. Whether the complainant qualifies as a 'consumer' under the Consumer Protection Act, 1986.
2. Legitimacy of the demand for payment for excess area.
3. Delay in handing over possession and the compensation for such delay.
4. Provision of promised facilities and amenities.

Analysis:

1. Consumer Status of the Complainant:
The primary contention by the opposite party was that the complainant does not qualify as a 'consumer' since he had booked two flats, implying a commercial intent. However, the Commission rejected this argument, stating that mere booking of more than one flat does not automatically classify the purchase as a commercial activity. Citing precedents such as *Aashish Oberai Vs. Emaar MGF Land Limited* and *Kavit Ahuja Vs. Shipra Estate Ltd.*, it was established that unless it is proven that the complainant is engaged in the business of buying and selling properties regularly for profit, the complainant remains a 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986.

2. Demand for Excess Area:
The complainant contested the legitimacy of the demand for excess area, which was later justified by the opposite party with an architect's certificate dated after the demand was made. The Commission found this practice to be an unfair trade practice, as no proper documentation or comparison with the originally approved plans was provided to justify the increase. The demand for excess area was thus canceled, and the opposite party was directed to issue a revised demand excluding the excess area charge.

3. Delay in Handing Over Possession:
The possession was due by 26.12.2016 (CC 285 of 2018) and 08.02.2017 (CC 286 of 2018), but was only offered in December 2018. The complainant argued that the possession offered was incomplete and lacked promised amenities. The Commission acknowledged the delay and noted that the possession offered after obtaining the occupation certificate cannot be termed as 'paper possession.' However, compensation was warranted for the delay. The Commission referred to the Supreme Court ruling in *DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC*, which emphasized that compensation should align with the terms agreed upon in the builder-buyer agreement. Consequently, the complainant was awarded compensation for mental agony and harassment in addition to the agreed compensation in the agreement.

4. Provision of Promised Facilities and Amenities:
The complainant highlighted deficiencies in the property and requested the provision of all promised facilities and amenities. The opposite party agreed to rectify the noted deficiencies. The Commission directed the opposite party to rectify all defects within 30 days and hand over complete possession as per the agreement.

Conclusion:
The complaints were partially allowed with the following directives:
1. The demand for excess area was canceled, and a revised demand excluding the excess area was to be issued within 30 days.
2. The opposite party was directed to rectify all noted defects within 30 days.
3. Complete possession, as per the agreement, was to be handed over within 30 days from the revised offer.
4. Compensation for mental agony and harassment was awarded: Rs. 5,00,000/- in CC 285 of 2018 and Rs. 3,00,000/- in CC 286 of 2018.
5. Compensation @ Rs. 7.50 per sq.ft. per month from the due date of possession up to three months after the date of the earlier offer of possession in December 2018 was to be paid.

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