National Consumer Disputes Redressal
Ruchira Residency Apartment Owners ... vs West Bengal Housing Board on 11 October, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 46 OF 2009 1. RUCHIRA RESIDENCY APARTMENT OWNERS ASSOCIATION Represented by its Authorized Signatory, Secretary, 369, Purbanchal Kalitala Road, E.M. By Pass, KOLKATA - 700 078. ...........Complainant(s) Versus 1. WEST BENGAL HOUSING BOARD Represented By It's Chairman Having it's Office at "Abasan", 105, S.N. Banerjee Road, KOLKATA - 700 014. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. SANJOY KR. GHOSH, MS. RUPALI S. GHOSH, ADVOCATE FOR THE OPP. PARTY : MR. KUNAL CHATTERJI, MS. MAITRAYEE BANERJEE, MS. KSHITIJ
SINGH, ADVOCATE
Dated : 11 October 2024 ORDER
PER HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
1. Introductory Information: The Complainant Ruchira Residency Apartment Owners' Association (RRAOA) is an association of flat-buyers registered under West Bengal Apartment Ownership Act, 1972 on 06.10.2010 so formed by the owners of 576 flats in the Project "Ruchira Residency," developed and constructed by the OP Board at Premises No. 369, Purbachal Kalitala Road, E.M. Bypass, Kolkata-700078. The complainant association took over the assets, rights, liabilities, management and maintenance of common areas and amenities of the project after its own registration, from a society "Ruchira Residency Residents' Welfare Association (RRRWA), a body registered under West Bengal Registration of Society Act, 1961 on 12.02.2007, who had earlier taken over such possession and management of common areas from OP Board on 16.04.2007. The original complaint in 2009 was filed by RRRWA, which was continued till the amended complaint by RRAOA was filed and admitted u/s 12(1)(b) by the Commission vide order dated 30.03.2022. The complaint involves allegation of misrepresentation in brochure, advertisements and communications and deficient provisioning of amenities and facilities vis-a-vis what was represented in the brochure. Having realised such deficient service from the OP developer, RRRWA had engaged Mr. Manojit De, an approved valuer of Calcutta High Court to submit a report with regard to the measurements of the area provided by the OP to the complainant as well as to verify with regard to the amenities and facilities which were promised but were not provided by the OP Board after inspecting the premises. Mr De was also requested to assess the defects in the civil work in the flats allotted to the members of the complainant. Mr. De, in his report after inspection came to the conclusion that the cost of removal of deficiency and defects can be estimated at Rs.8,30,08,240/-. Based thereon, the complaint is filed to claim equivalent compensation for deficient services including for delay in handing over the possession. Accordingly, following compensation has been claimed in the complaint:
1. Rs.2,01,24,750.00/- for deficit area of the project land
2. Rs. 1,08,00,000.00/- for illegal charges for car parking space provided in common area
3. Rs.3,20,83,490.00/- for lack of amenities of swimming pool, water bodies, community centre, children park.
4. Rs. 1,00,00,000.00/- for delay in possession.
5. Rs. 1,00,00,000.00 for defective construction.
Rs.8,30,08,240.00 Total
2. Jurisdiction: The preliminary objections werre raised by the OPs regarding the maintainability of the complaint/amended complaint on the grounds of pecuniary jurisdiction as also of maintainability by the current statutory association which, as per the OP, not being a voluntary organisation cannot institute or continue the complaint. The questions whether the RRRWA could file the complaint under Section 12(1)(c) and whether the complaint filed in 2009 by a different association could be continued by the same or even the newly formed association RRRWA, and whether a statutory association can institute or continue the present complaint, were raised by the opposite party. The orders passed by this Commission in this behalf including that dated 30.03.2022 admitting the amended complaint u/s 12(1)(b) have travelled twice before the Supreme Court. The amended complaint was taken on record under Section 12(1)(b) and the same was held maintainable after considering the plea raised by the opposite party with regard to the maintainability under Section 12(1)(b) as also on the ground of pecuniary jurisdiction. Supreme Court vide its order dated 04.03.2023 in CA No. 4777 of 2022 has dismissed the appeal filed by the opposite party and directed the Commission to proceed with the amended complaint. The pleadings and the evidence already filed were also accordingly adopted for the purposes of the amended complaint. Thus, all issues with regard to maintainability stand decided and closed and the complaint needs to be treated as maintainable. Additionally, we may also observe that with regard to maintainability of a complaint by a statutory association of buyers, a larger bench of this Commission in the order dated 30/01/2024 in CC/01/2022 in the case of Adriatica Co-Op Housing Society v. Macrotech Developers and Others held such complaint maintainable and observed in para 8 as under:
"8. The word "person" has been defined under Section 2(30) of the Act, which includes a co-operative society. Although the complainant has not availed the services of 'house construction' from opposite party-1 but is beneficiary of such service with the approval of the home buyers, who had availed the service of 'house construction' from opposite party-1. A Full Bench of this Commission in CC/6/2022 Landscape Heights Co-operative Housing Society Limited Vs. M/s. Landscape Realty (decided on 28.03.2023) and Supreme Court in Samruddhi Co-operative Society Ltd. Vs. Mumbai Mahalaxmi Construction Private Limited, AIR 2022 SC 428, held that co-operative housing society, incorporated by opposite party-1 due to mandate of Section-10 of the MOFA, is itself a consumer and the complaint filed by it, is maintainable under Section 35(1)(a) of the Act."
3. The Complaint: Each allegation of deficiency in service has been levelled in the complaint on the basis of the report prepared by Mr. Manojit De, who inspected the premises before preparing the report, and who has been examined and cross-examined. It is therefore worthwhile to peruse relevant part of this report dated 24.02.2009 before we turn to the pleadings:
"1. Land Area: The total land area as promised in Brochure as well as mentioned in Full payment Sale Deed is 4.543 Acre but as found in survey, the land area is 4.095 Acre. So, the difference is 0.448 Acre, which is 26.833 Kattahs. (Plan enclosed). Hence, flat owners are deprived of 0.448 Acre of land against land area promised in Brochure as well as Sale Deed. As information gathered from Registration Office, a residential plot being registered @ Rs. 10,00,000/- per Kattah. A deduction 25% due to largeness is allowed. So, the rate comes to Rs.7,50.000/- per Kattah. Hence total amount is Rs.20124750/-.
2. 'CAR PARKING SPACE* in open common areas : It is observed that W.B.H.B. sold car parking space in open areas and has taken Rs. 1,08,00,000/- (@ Rs.75,000/- each car for 144 No. of cars). The ownership of common areas is vested as common property of the flat owners being land appertain to the buildings.
3. OPEN AREA : In "Detailed Information Brochure" W.B.H.B. mentioned, 'about 75% open space' be kept open. The total land area minus total Ground Coverage of all the buildings is equal to open space. Hers as I found on survey, total land area is 4.095 Acre. Total Ground Coverage (8 No. Towers) is 7208.00 M2. Hence, unbuilt area is (16,571.89 - 7208.0) = 9363.89 M2. So, the open area is 56.50% which is less than (75 - 56.50) = 18.50% which is almost 3065.79 or 45.833 Kattah. (Plan enclosed). In this case, area is larger than Point No.1. So, a deduction @ 30% is very much reasonable. Therefore, Rate comes to Rs.7,00,000/- per Kattah. Hence the total amount is Rs.3,20.83.490.00.
Whatever common area exists at the site being land appertaining to the constructed flats are jointly owned by the owners as an undivided, impartable land required to be kept open under Building Regulation of The Kolkata Municipal Corporation (K.M.C).
7. Some salient amenities and facilities not provided but Promised in Detailed Information Brochure. i) In the said Brochure Swimming Pool and Water body were promised but only Swimming Pool has been provided. This should be called "So called Mini Swimming Pool" meant for children only. ii) Two 'Community Blocks as promised have not been provided. An area 15' X 15' = 225.00 sq.ft. (approx) is very much inadequate. To my opinion, W.B.H.B.'s promise is not fulfilled by just providing a more or less 225.00 sq.ft. area at first floor of an isolated building. It is necessary to have at least one Community Centre in each Tower to make a meaningful facility. It surely a case of denying a facility as promised. iii) Club House ; I did not find any space or room to be called as Club House at the time of inspection. iv) Childrens' Park ; This is also I did not notice at the time of inspection. As I found that some play equipments provided at some places in haphazard way. This can never be called as 'Childrens' Park'. v) Water Body ; As promised, I did not find any water-body in the sense of water body. On the contrary, as mentioned in the said Brochure, one place given as so called Mini Swimming Pool and the other place, where the office space provided.
vi) In the said Brochure, WBHB made the following promise
"All the flats including common areas and facilities will be completed by the end of 2006 unless for unforeseen circumstances beyond the control of the Board. The Board will compensate the allottees by payment of interest prevailing in savings banks account from the date of delay till the possession is handed over, except under circumstances stated above". Possession was handed over on and from May 2007. But no completion certificate has been provided till date.
Total amount required to be compensated is as below:
1. Rs.2,01,24,750.00/- for deprived of land
2. Rs. 1,08,00,000.00/- for car parking space
3. Rs.3,20,83,490.00/- for lack of open space and amenities like swimming pool, water bodies, community centre, children park.
7. Rs. 1,00,00,000.00/- for delay in possession.
8. Rs. 1,00,00,000.00 for defective construction Lump Sum.
Total Rs.8,30,08,240.00 (Rupees Seven Crore Thirty Lakh Eight Thousand) only"
3.1 Allegations in the complaint are: (i) The OPs failed to deliver promised amenities and facilities as advertised. The project, spread across eight towers of G + 12 blocks, was advertised by the Opposite Party with amenities and alluring promises in the brochure, e.g. complex being on a 5 acre plot, 75% open areas, provision of a clubhouse, a children's park, and a water body in the complex. Despite receiving full payment and executing conveyance deeds, OP failed to provide these amenities despite repeated requests. (ii) OP also failed to obtain and provide the Completion Certificate without which as per rules of the Kolkata Municipal Corporation no one shall be permitted to take possession and reside in their respective flats. (iii) The project plot area is only 4.095 acre which is smaller than the promised size of 4.543 acres in conveyance deed and 5 acres in the brochure (iv) Actual open area being only 56.5% of the plot area is far less than the brochure-promised 75% of the plot area, (vi) The illegal charges for open car parking spaces have been levied from the allottees when such open spaces belong to the society and such levy contravenes provisions of West Bengal Apartment Ownership Act, 1972 (v) no provision of club house or water body which were categorically promised by the OP Board in the brochure (vi) The actual swimming pool and the children's park are mere namesake. The members of the complainant association wrote numerous letters to OP Board to provide the amenities and facilities as above and refund the illegal levy for open car parking spaces. However, The Complainant Association is praying for compensation for short receipt of land (Valuer's Report at page 46), car parking space (page 47), shortage of open space (page 47), shortage of facilities (page 50), late delivery of flats (Annexure "D" at page 51), and lack of KMC water connection for drinking water. The Complainant also relied on Lakshmi Complex Welfare Assn. v. Suri Constructions, 2005 SCC OnLine NCDRC 163 and Kamal Sood v. DLF Universal Ltd., 2007 SCC OnLine NCDRC 235, wherein builders were held accountable for representation in brochure and for obligation for obtaining completion certificates.
3.2 Reply to the Complaint: The Opposite Party filed their written version on 10.07.2009 and stated that the West Bengal Housing Board (the Board), established by the WB Housing Board Act, 1972, is not a private promoter or developer but a statutory body under Article 12 of the Constitution of India. It operates on a "No Profit, No Loss" basis to provide housing in line with Article 21 of the Constitution. It does not engage in commercial activities, thus the petition is not maintainable under the Consumer Protection Act (CP Act), there being no element of service. The forum lacks jurisdiction over the dispute (p. 37). After acquiring land and obtaining plan approval, the Board begins construction and invites applications accompanied by refundable fee from interested persons. A lottery system is used to select applicants who can pay consideration either in one lump sum or in installments (lottery held on 17.04.2003). No agreement in the nature of builder buyer agreement is executed at the inception, unlike in the cases of private developers. The Information Brochure is not a contractual document, and the Board has reserved the right to cancel allotments as provided in brochure (p. 37). Hence, the allottees are not consumers under the CP Act. Opposite party admittedly handed over the possession of individual units from May 2007 to the individual allottees and the common area and facilities in respect of HIG type apartment was handed over on 16.04.2007 to Ruchira Residency Residents Welfare Association which is within 4 months of expected date of completion without taking any grace period.
Plot area and 75% open space: With regard to plot area, the brochure clearly showed the proposed LIG towers in the proposed project and including areas of LIG and the STA area (which has been on a plot separate from the project plot), the total plot size is only slightly less than 5 acres as under:
1. Total area for HIG & LIG 4.963 acres
2. LIG area .4700 acres
3. HIG area 4.493 acres
4. Area for STP (solely for HIG) 0.2323 acres
5. Grand total area for HIG 4.7253 acres
6. Grand total area for Ruchira Residency project 5.1953 acres
So more area was given for the entire project (both HIG & LIG)
Thus, opposite party rightly stated 5 acre plot in the brochure but as HIG allottees formed one association in exclusion of the allottees of LIG towers, the LIG allottees had to form another association with a different name which does not and cannot change the fact that HIG-LIG Projects schemes were conceived and constructed and OC was obtained for construction on 5 acre plot. It is submitted that the said contention of the complainant that the LIG and HIG are actually not part of the same project is therefore fallacious as clearly depicted in the brochure. The final agreements with allottees in May-June 2007 clearly show the plot area to be 4.543 acre which is also so stated by even Mr. De in his report and hence no dispute should survive beyond this plot area, particularly when the brochure itself, which has to be read as a whole, clearly mentions that no dispute shall be entertained by the OP with regard to architectural and structural design and amenities in the project, and, when there is a clear freedom provided to the allottees to walk out from the project at anytime with only a nominal deduction. The Completion Certificate dated 17.07.2008 was for grant of full Completion Certificate U/S 403 of KMC Act, 1980 and sub-rule(2) of Rule 27 of K.M.C. Building Rule, 1990 for G+VII storied Residential Building 8 Blocks and Four Storied 4 Blocks at a common Premises No.369, Purbachal Kalitala Road, Kol-78, Ward No.106, Borough - XII, vide B.S. Permit No.632 (Br-XII) dated 12.01.2004 doubtlessly establish that the project inclusive of LIG four towers was conceived and implemented on a 5 acre plot. It is submitted that according to Rule 28 of the Kolkata Municipal Corporation Building Rule 2009 read with Section 403 of the Kolkata Municipal Corporation Act 1980, the completion certificate is issued only once the construction matches with sanctioned plan and if the two projects HIG and LIG were different, then single combined completion certificate would not have been issued and same premises number would not have been given to the entire area in view of the provision of assessment in KMC Act 1980. About the percentage of open area at "about 75%", the area was shown as an estimate and after taking into account the STA open area and size of the plot including the LIG area, the open areas is more than 70% which indeed is "about 75%". It is submitted that open space includes wide roads, children's park, clubhouse, swimming pool and community centre and thereafter upon calculation, the total open area would be 71.46% which is as provided in the Brochure of about 75%. (Page No. 72 and 73 of the Affidavits/Evidence filed by the Parties, Para 16 of Affidavit dated 24.02.2014).
Other issues: It is submitted that besides the common areas and facilities, the additional facility that have also been provided are as follows: (i) Water bodies: Two water bodies have been provided in terms of the Brochure in their earmarked locations one of which is swimming pool. (ii) The Opposite Party has also provided a two storied community hall and a single storied community hall which can also be utilized as club houses. (iii) The Central Courtyard in 'A type building' has been made keeping in mind the children's play, whereby there has been provision of playing equipment and other such facilities. Additionally, the raised area over underground reservoir has also been made for the use of children. (iv) Proper watchman's Goomty which has been provided as an additional facility although not mentioned in the Brochure. This was provided as the Commitment for Social Security by WBHB. (v) Common Toilet facilities. - This facility was not mentioned in brochure and as such the same was not provided. It is for the flat owners/ownership body/association to arrange for this. The personalised, subjective, biased, one-sided and uncorroborated opinion about these facilities cannot be relied upon in the absence of substantive evidence. It is settled law that expert evidence cannot be relied upon in absence of a substantial piece of evidence (See Chennadi Jalpathi Reddy vs. Baddam Pratapa Reddy (Dead) Through Legal Representatives & Anr,(2019)14 SCC 220,S. Gopal Reddy vs. State of A.P. (1996) 4 SCC 596.
Car Parking: The brochure itself clearly and unequivocally informs the applicants that out of a total of 576 parking spaces, 432 shall be "covered" by being under the building or under shed and balance 144 shall be "open parking spaces", and each shall be charged respectively at Rs. 1.5/0.75 lakhs. In charging for parking spaces, there is no hidden "profiteering" or extra-charging by the OP Board. Moreover, in West Bengal Municipal Laws, open car parking can be legitimately sold and in the present case the brochure itself made it clear about the differential pricing of covered and uncovered/open car parking. The minutes of the meeting dated 25.07.2007 between the officers of Opposite Party and Welfare Association reveals that after the possession was handed over in 2007, parties negotiated and resolved to deal with 47 individual allottees regarding their problem qua covered garages (Page 90-93 of the Evidence of OP) and ultimately OP refunded the differential amount of Rs. 75000/- per allottee with 18% interest and those 47 allottees, who shifted from covered to open parking did not raise individual grievance in this regard and therefore, the issue having been resolved for members pursuant to the taking up of the same by the Complainant, the same cannot and should not be re-agitated on an entirely different and baseless ground by the association-complainant (pg 9 and 10 of the Written Version dated 27.11.2020,Para X, XI). It is the general rule that West Bengal Housing Board does not charge any price separately for "Common Areas" which are open to sky. But the open car parking in the "limited common area" was charged separately without disturbing the common area open to sky, in as much the "charge" was a charge for "Use". The West Bengal Apartment Ownership Act, 1972 contains a provision of "limited common areas and facilities [Section 3(d)(i)] which runs as follows: Limited common areas and facilities" means those common areas and facilities which may be designated in the Declaration as reserved for use of certain apartment or apartments to the exclusion of the other apartments; In that view of the matter also, there is nothing wrong in selling those parking space to the owners of the apartments/flats of the said scheme. The charging of amounts for such limited Common areas as "open parking space" as defined in Section 3(d) of West Bengal Apartment Ownership Act, 1972 is therefore also perfectly valid.
By raising grievances in respect of open area and general space, the complaint has actually sought to dispute the Architectural design of the project which they clearly barred by raising in view of Clause 5 in their individual Sale Deed (Document No.16- Page 95-106 Written Version filed by the O.P on 27.11.2020) and also in view of brochure. That the Sale Deed under paragraph 5 states that the purchasers have taken inspection of the building plan, site plan, car parking space, all constructions thereof, all fittings and fixtures, amenities, facilities, common area, and facilities. Paragraph 8 of the sale deed also reads "The Purchasers has/have further agreed in the matter that no complaint regarding design, layout, accommodation, specification, fittings and fixtures and amenities provided in the flat or in the Estate shall be entertained by the Board after this sale transaction".
4. Rejoinder: The Complainant filed Rejoinder and submitted that the WBHB is not a true non-profit organization; it operates like a private promoter with nominal government involvement. Some flats are reserved under the OP's Chairman's discretion, making it a joint venture between the government and the private sector. The assertion that flat purchasers are estopped from challenging the Opposite Party's actions after execution of the Deed of Conveyance is incorrect. The Deed states that vacant and peaceful possession of flats and car parking spaces should be handed over after registration, and any actions contrary to this assurance indicate a deficiency in service and unfair trade practices. The claim that a Completion Certificate was handed over to the Complainant is false. The Complainant has not received this certificate as of the case's admission date and even till the dates of Affidavit of Evidence filed by both parties.
5. The primary allegations and issues arising in this complaint are the alleged failure to deliver promised amenities (i) Dispute regarding parking space, (ii) less open area (iii) absence of club house, (iv) inadequate children's park (v) no water body, (vi) deficit project land size and failure to deliver about 75% open area as promised i.e only 4.48 Acre against promised 5 acre, and (vii) delay in obtaining a Completion Certificate.
6. We have carefully heard the parties and perused the record. Having perused the material and at the outset, we agree with the OP that the The West Bengal Housing Board is a statutory body mandated to provide housing and that it is in operation not primarily for profit, or, in any case not for exploitative profiteering, but to carry out the statutory mandate. In the absence of formal Buyer's agreement, the brochure forms the fundamental intent or promise of the OP, and when the allottee accepts the allotment by paying the initial amount, he is deemed to have accepted the terms, including those which restrict the allottee's rights to take up and agitate issues as clearly specified in the brochure, unless it can be shown, which is not possible in the present case, that the same is blatantly one sided. Subsequently, after the common areas and amenities are taken over by the Complainant Association, such rights of subsequent agitation further shrink which, after the execution of the individual conveyance deeds in favour of the allottees, must necessarily be shown by the Complainant to be positively and categorically flowing from the brochure and the conveyance deed read together. We also note from the brochure that it is fundamentally an information brochure and not any unduly alluring marketing tool knowingly making false representation. We further note from the brochure that the allotment is to be "by draw of lottery" implying that the demand for the project is already higher than the supply implying that indeed there is absolutely no need nor any interest for the OP Board to misrepresent so as to bring in customers. We also note that around 60% of the project is under "reservation", meaning that getting the allotment and a flat in the project in itself is a much sought after benefit. In view of these facts, and therefore, it is not necessary, in our opinion, that each word and sentence in the brochure has to be or should be or can be measured against what has actually been delivered by the OP on the ground, particularly in view of the additional fact that the allottees are debarred from raising any architectural design issues and issues relating to common amenities in the very brochure expressly and categorically which cannot be only conveniently read by the complainant, and when the easy "walk-out" option is also expressly granted. We agree with the OP that It is not a typical commercial entity and does not function as a typical private developer. However, at the same time, the OP very much remains the service provider and there is indeed no doubt as to applicability of the Consumer Protection Act.
7. It appears that the Ruchira Residency project was launched somewhere in 2002 and a detailed brochure, filed as Annexure A along with the complaint was issued providing information about the amenities and the project, costs of units and the terms and conditions. December-2006 was specified as the due date of handing over possession. We have noted that the Complainant society was registered on 12.02.2007 and the Complainant association took over the common areas and amenities on 16.04.2007, while individual taking over of possession of flat by allottees started from 15.05.2007. The last instalment towards consideration was to be paid by the allottees in October 2006 and due date for handing over the possession is stated in the brochure to be December 2006. The Board received the full completion certificate from the Calcutta Municipal Corporation on 17.07.2008. The Complainant Association was formed on and took over the common areas on 16.04.2007 through the execution of a "Handing Over Certificate" after having been registered as a society on 12.02.2007. The individual registered conveyance and handing of individual flat possessions started from May-end, 2007. The Board argues that expert opinions submitted by the Complainant lack evidentiary value as they were not requested by any authorized body.
8. We are of the considered opinion that as rightly submitted by the OP, the brochure has to be read as a whole and that the clauses in the brochure restraining the allottees from raising the issues of architectural design of the project and the structural issues have also to be read with equal emphasis. In other words, the obligation of the OP to fulfill the representation has also to be read in light of the understanding of the prospective allottee with respect to his restrained rights to agitate issues after the possession of the unit has been taken over by him and the conveyance deed in his favour has been executed. In light of this and in light of the rival contentions as detailed above the issues are discussed as under:
1) Land area, 75% open area, swimming pool, children play area, water body, community center - It is an admitted fact that the conveyance deed in favour of the respective allottees have been executed in the month of May, 2007 onwards. As mentioned in the first two paragraphs of the conveyance deed, the Govt. of West Bengal vide notification dated 18.01.2002 transferred more or less 13.5262 acres and vide notification dated 06.06.2005 an additional 0.54 acres of land at Kasba No. 13, Jadavpur Police station, Distt. 24 Parganas. The West Bengal Housing Board "inter alia erected residential flats located within 8 towers on more or less 4.543 acres of land and further the sewage treatment plant occupied additional 0.2323 acres of land". The total land as per this conveyance deed made available for "Ruchira Residency HIG Project" is 4.7753 acres. In our considered opinion, the 5 acres of land as projected in the brochure wherein on page 6 of the brochure both the HIG and LIG towers are also shown adjacent to each other, and when in substance 4.78 acres of land is expressly made available to the HIG project as per the conveyance deed, the same per se cannot be read as any misrepresentation or deficiency or short-supply when the conveyance deed itself mentions the measure of the project land size and when such small difference of common project land area amongst nearly 570 allottees makes it only remotely significant in decision making of by the allottees to have applied for allotment. Firstly the complainant society and then the individual allottees have duly accepted the conveyance. The copy of the site map on record, signed by the Complainant's office bearers and the OP clearly mentions the plot size, including the transformer and generator rooms to be 13835 sq m equivalent to 4.543 acre (plus STP area). It is not at all the case of the complainant that the OP has, by reducing the area of the project, built any new project on such part of the 5 acre plot, and thereby intentionally misrepresented for profiteering. As submitted by the OP, the total HIG+LIG flats plot available is more than 5 acres and a common and single OC for both was applied and obtained. Therefore we find no misrepresentation or unfair trade practice in depicting 5 acre plot in the brochure. However, at the same time, we note that the as against the measure of the plot of 4.543 acre as stated in the agreement, the actual plot size is only 4.095 acre as measured by Mr. De physically. As late as in 2024 the OP filed IA/813/2024 for allowing the survey on behalf of the OP to counter the report of the valuer Mr. De and to submit the same even after Mr. De was cross examined with regard to his report. The Commission vide order dated 23.01.2024 rejected such request and the appeal thereon of the OP has also been rejected by the Hon'ble Supreme Court. Therefore, we cannot overlook the objective finding of Mr. De to the effect that the plot size on which the project is built is only 4.095 acre and that there is a deficit of 0.448 acre vis-a-vis 4.543 acres as mentioned in the deed of conveyance. OPs have attempted to explain in their affidavit of objection dated 24.02.2014 that the measurement of a vacant plot and that after the construction thereon can differ to some extent and that the "on ground" measurement can also differ from that depicted on maps and records. However, we have no intention to overlook or bypass the fact that though the OP had enough time and enough resources including their own engineers and surveyors to objectively counter Mr. De's land area, apart from denying that the available plot size is of only 4.095 acre and explaining the likely cause of difference, there is no technical finding or report placed on record by the OPs to overturn this specific and objective finding. It is stated by the OPs however, in the counter affidavit filed on 10.07.2009 that part of the land was handed over to the local body for constructing a road which as per the OP can be used only by the residents of HIG. This would, however, also imply that the plot area in any case has in fact reduced. Not only this in itself, being contrary to conveyance is gross deficiency, this reduced plot area and open area has added to the difficulty of the allottees in maneuvering and managing parking of cars. Therefore, notwithstanding the fact that after taking the possession of the units and common amenities, the allottees are debarred from taking up design/architectural issues with the OP, the OP still cannot and should not succeed in delivering project plot size smaller than what is mentioned in the deed of conveyance. Accordingly, we hold that the complainant association is entitled to be re-compensated for the same. While the report of Mr. Manojit De has quantified the appropriate compensation at Rs.2,01,24,750/- on the basis of alleged market rate of land, the same is not supported by any corroborative evidence. Furthermore, we have to take note of the fact that the project has been constructed on the land made available to the Board through govt notification and there is no question of arriving at compensation amount basis the market rate. Therefore, we deem it more proper to quantify the appropriate compensation on the basis of total consideration paid by the allottees which has been stated at page 51 to be Rs.79.02 crores. We deem it appropriate to consider the land cost only at 10% thereof because the same is government land which did not cost or had any market value and the OP must also be presumed to have been constrained by what finally came to be provided by the government on as is basis. Moreover, the housing provided by OP on the land provided by government has the prime component only of construction cost to bring it within the reach of everyone. Part-reduction in plot area is also due to handing over to the Municipal Authorities for road construction. After considering all these factors, the cost of land of the project incurred by the allottees is thus and therefore arrived at Rs.7.9 crores. The value of the deficient quantum of plot area, and consequent deficient service on the part of the OP would therefore come to Rs.74.11 lacs/- (7.9*0.448/4.7753) (4.7753 taken as total of 4.543+0.2323 STP) which, as rounded off to Rs. 80 lacs, need to be made over by OP to the members of the complainant with interest as compensation.
With regard to representation in the brochure "about 75% open area", we are of the considered opinion that the representation itself in the brochure cannot be and is not be read strictly a serious promise due to "about" in the promise. The OP has shown that the open area may reach nearly 65-68%. But when plot area itself is smaller than 5 acre for HIG as per the agreement and when building and built up area size has not reduced, the open area % is bound to decline further. However, after taking into account the area of STP and the deficit area being compensated as above, the open area would more or less reach the projected "about 75%" jointly for HIG, LIG and STP areas taken together, though actually due to reduced plot area, it would be less than even 65% for HIG plot alone. In view of the compensation being granted for deficit land area, no additional compensation is considered necessary for this natural consequence. The meeting of the association with Officers of OP dated 25.07.2007 clearly reiterates on behalf of the OP the restraint on the allottees to agitate the design/architectural issues. Therefore also, we find no surviving agitatable merit on the issues of representation of "about 75% open area". Similarly, on the issues amenities of swimming pool, children's play area, community center and water body, we agree with the submissions made on behalf of the OP that the expert Mr. De's subjective assessment and evaluation, and subjective allegations in the complaint without any corroborative evidence or concrete measurements cannot be accepted particularly when the allottees have, after having been successful in a draw of lottery, happily accepted the conveyance and possession of the units being fully aware of the restraints in the brochure clauses. Moreover, the site map signed by the officer bearers of the complainant clearly depicts swimming pool and two community blocks and so is also stated in Mr. De's report and also in the OP's reply. When the fact that these amenities are provided is not disputed, we refrain from holding that they are only namesake merely on the basis of Mr. De's subjective report particularly when allottees have agreed in para 5 and para 8 of the conveyance deed (as was also cautioned in the brochure) to the effect that no complaint regarding design, layout, specification and amenities provided in the flat or in the estate shall be entertained by the Board. It has been clearly stated by the OP that the water body needed to be covered up because of the concerns shown by the approving authorities. The complainant can always take up the matter with the authorities concerned. Two community centers, one of which is two storied and the other is single storied, have also been provided, which can be used as club house or for other appropriate use. Children park is stated to have been provided by the OPs and there are also marked play areas in central courtyard in 'A' type building. The OP have also provided additional facility, not mentioned in the brochure like watchman goomty. We therefore, find no misrepresentation in the information brochure or any deficiency in providing such amenities entitling the complainant to further agitate. With regard to provision of KMC water supply, equally, the issue does not appear to have been raised earlier with the OP officers and the same is also not duly substantiated and therefore does not deserve our further attention.
2) Car parking - We have noted that while on page no. 3, 4 and 5 of the brochure the details of the total consideration of the units have been provided, on the same page 5 of the brochure, the details and rates for car parking spaces have been equally prominently provided. It is absolutely clear in the brochure that there would be 432 covered car parking to be charged at Rs.1.5 lakhs and 144 uncovered car parking to be charged at Rs.0.75 lakhs. It is the grievance of the complainant that the OP board could not have charged Rs.1.08 crores at Rs.75,000/- each for 144 car parking spaces provided in the common areas. Apart from the fact that the provisioning and charging of such car parking spaces in open common areas is clearly mentioned in the brochure, the OP in their submissions have mentioned that the Kolkata Municipal Act of 1980 and the regulations made thereunder allows for "limited common area" open to sky and allows for charging of "use" of the same. Therefore, we find neither any anomaly or any misrepresentation. When the allottee from the very beginning is made aware that the car parking spaces would be provided to 144 allottees in open area, it does not remain valid for such allottees to challenge such charging on the ground that the open area cannot be sold and would jointly belong to the residents. We have also noted that nearly 50 of the 432 allottees who were provided covered car parking spaces wanted and were accordingly shifted to the open car parking category and were allotted such car parking in open area in addition to 144 open area parkings as depicted in the brochure. This has been recorded in the minutes of the meeting between the two contesting parties held on 25.07.2007 as submitted by the OP in written version filed on 27.11.2020. Such issue was not only taken up by the complainant but was resolved by the OP in consultation with and to the satisfaction of the complainant. Consequently, the OP has also refunded nearly Rs.37.5 lakhs with 18% interest to such allottees who shifted their covered car parking spaces to open car parking spaces. We find find no merit in the contention of the complainant that the sale of open car parking spaces is illegal and is contrary to the Supreme Court decision in Nahalchand Laloochand Vs. Panchali Cooperative Housing Society (2010) 9 SCC 536 and that same is in contravention of KMC Building Rules, 1990. This is because the brochure itself has unambiguously indicated the cost of both the flat and the parking space distinctly, separately and transparently including the number of covered and open parking spaces and the amounts chargeable therefore. The OP has brought to our notice the Rule 2(37) and 2(39) and s. 3(d)(i) and of the WB Apartment Ownership Act which define "open space" and "parking space" "limited open area". Parking space is defined to be "an area enclosed or unenclosed, covered or open, sufficient in size to park vehicles" and "limited common areas and facilities means those common areas and facilities which may be designated in the Declaration as reserved for use of certain apartment or apartments to the exclusion of the other apartments". The Supreme Court's decision in Nahalchand discusses the provisions of MOFA and the obligations of the builder thereunder which is not strictly applicable in the present facts. In our considered opinion when the builder clarifies in the brochure itself and makes it known to all the prospective allottees that a part of the open area shall be allotted and charged as open parking space, the grievance about such charge cannot subsequently be raised. Moreover, the issue relating to car parking and open space were resolved in a meeting held on 25.07.2007, and the Board claims to have adhered to the obligations in the brochure and have also resolved subsequently raised issues as per the following minutes, after which while taking up the issue of delay compensation, the car-parking space issue was not at all raised in communications of the complainant dated 30.09.07 and 26.08.2008:
"It was decided that WBHB would contact the 47 allottees whose registration process was completed for covered Car Parking Spaces (C.P.S.) to discuss and obtain their decisions on opting for uncovered parking in lieu of covered C.P.S. The financial impact would be calculated, and the matter would be dealt with by WBHB. WBHB assured the Association that they would look into the issue regarding the presence of fire-fighting equipment projected in the driveways of the Car Parking Spaces (C.P.S.). WBHB confirmed that 12 Car Parking Spaces (C.P.S.) were removed from the common area, as previously decided, and relocated without disturbing the existing pattern. It was reported that the final N.O.C. from the West Bengal Fire Services Department was expected by August 2007. WBHB was in constant touch with the concerned authority (I & W.D.) to obtain permission for the discharge of effluent into their irrigation canal, and this permission was expected soon. WBHB agreed to assemble concerned officers at the Ruchira Residency Site on 28.07.2007 in the presence of the Association to address the problems raised, including the removal of the electrical base located in front of Tower-I."
We therefore find no merit in the contentions of the complainant with regard to allotment of and charging for open parking spaces by the OP.
9. That brings us to the last disputed issue of delay in handing over the possession. There is no dispute that the possession promised in the brochure was that of December, 2006. There is also no dispute that the RRRWA was formed on 12.02.2007 and that the common areas and amenities were taken over by such society on 16.04.2007. The process of handing over of the possession to the individual allottees after completion of the registration process started from May, 2007. The brochure also categorically mentioned that the Board shall compensate for the delay in handing over the possession beyond the due date of possession of 31.12.2006. There cannot also be dispute that the full completion certificate of Kolkata Municipal Corporation was obtained on 17.07.2008 on the basis of application dated 04.06.2008. There is no dispute that the individual flats can be handed over only after the common facilities and amenities have been first handed over to the welfare association of the allottees. The delay upto the formation of the society and taking over of common amenities by them cannot be attributed to the OP. Therefore, the period of delay, in handing over the actual physical possession has to be arrived after ignoring the same which comes at a figure of 78 days (13th February, 2007 to 30th April, 2008). Because the physical possession was already taken and the full completion certificate is obtained subsequently on 17.07.2008, while must and we would observe that the handing over of the possession without receipt of statutorily required occupation certificate is invalid, we would not want to include such hypothetical delay for computing delay compensation because both the complainant and the individual allottees have actively taken the possession, enjoyed the possession and have also made no grievance with regard to period beyond receipt of physical possession in subsequent meeting with the officers of the OP. As mentioned earlier, the total consideration received by the OP is Rs.79.02 crores. The delay compensation in terms of Supreme Court decision in Wg. Cdr. Arifur Rahman Khan vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512 at 6% would come to Rs.1,01,31,879/- for 78 days, which is rounded off to 105 lacs. The same would need to be paid with further 6% interest thereon for the period of date of filing of the complaint to the date of actual payment by the OP. We may note that once the "full completion certificate" for the project has been obtained, the fulfilment of conditionality with regard to KMC water connection or the validity of the lift certificate etc would not be gone into by us to adjudicate the validity thereof. In any case, we are not considering alleged delay beyond 1/5/2007 for delay compensation. Therefore, we would direct the OP to hand over, if not already done, the full completion certificate to the compliant and pay the total determined compensation with 6% interest. Hence the following order:
ORDER
The complaint is partly allowed. The OP - West Bengal Housing Board is directed to pay Rs. 185 lakhs with 6% interest from 27.03.2009 (date of filing of the complaint) till the date of actual payment. The OP and the complainant association shall coordinate to ensure that the amounts accordingly due and payable to each of the members of the association is credited in the accounts of the current owners of the flats in equal amounts. The OP shall also pay cost of Rs.1 lakh which shall be retained by the association. The order shall be complied within a period of three months.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER