Law Web: Distinction between basement parking,parking area and garage

BASEMENT PARKING

19. The next question which arises for consideration is as to whether the basement parking

provided by the developer for the allottees qualifies as a garage or it qualifies as the basement or

parking areas, which are included in the definition of common areas and facilities in Delhi

Apartments Ownership Act. It is stated in a Note submitted by the Developer on parking that this

is a three level basement parking, which affords full protection and shelter to the car not only from

the top but also from the three sides and is equipped with security cameras and manned by

security personnel inside the basement, outside the basement and on the gates of the Complex and

therefore, the aforesaid place is much superior to a standalone garage, which is either open from

the front or is protected only by a lock. It was submitted on behalf of the complainants that to an

ordinary person a garage would mean a place, which is provided to a particular allottee, to the

exclusion of all others and which can be individually locked by him in order to ensure the

protection and safety of his vehicle. Both the parties have relied upon the decision of the Hon’ble

Supreme Court in Nahalchand Laloochand P. Ltd Vs. Panchali Co-Op. Housing Society Ltd.

(2010) 9 SCC 536 , in support of their respective submissions.

20. In Nahalchand (supra), the developer had provided stilt parking spaces / open parkings and

had declared that the said parking would belong exclusively to them. The question which arises

for consideration before the Hon’ble Supreme Court were as to (i) whether the standalone garage

provided by the developer as an independent unit by itself was a flat, (ii) whether stilt parking

space / open parking space of a building regulated by MoFA is a garage and (iii) whether the stilt

parking space / open parking in such a building is part of common areas and facilities. Having

examined the aforesaid questions in the light of the provisions of Maharashtra Ownership of Flat

Act (MOFA) and Development Control Regulation (DCR), the Hon’ble Supreme Court inter-alia

held as under:

“ 41. It is clear to us that stand alone “garage” or in other words “garage” as an

independent unit by itself is not a “flat” within the meaning of Section 2(a-1).

48. What is contemplated by a “garage” in Section 2(a-1) is a place having a roof and

walls on the three sides. It does not include an unenclosed or uncovered parking space.

51. For the purposes of MOFA, and particularly Section 2(a-I), the term “garage” must

be considered as would be understood by a flat purchaser and such person would

contemplate garage which has a roof and wall on three sides.

56. It was argued that under MOFA it is for the promoter to prescribe and define at the

outset the “common areas” and unless it is so done by the promoter, the parking area

cannot be termed as part of “common areas”. We are quite unable to accept this

submission. Can a promoter take common passage/lobbies or say stair case or RG area

out of purview of `common areas and facilities' by not prescribing or defining the same in

the `common areas'? If the answer to this question is in negative, which it has to be, this

argument must fail.

57. It was also submitted that by treating open/stilt parking space as part of `common

areas', every flat purchaser will have to bear proportionate cost for the same although he

may not be interested in such parking space at all. We do not think such consideration is

relevant for the consideration of term `common areas and facilities' in MOFA. It is not

necessary that all flat purchasers must actually use `common areas and facilities' in its

entirety. The relevant test is whether such part of the building is normally in common use.

58. Then it was submitted that if a parking space is sold to a flat purchaser, it is to the

exclusion of other flat purchasers and, therefore, logically also it cannot be part of

`common areas'. This submission is founded on assumption that parking space

(open/covered) is a `garage' and sellable along with the flat. We have, however, held in

our discussion above that open to the sky parking area or stilted portion usable as parking

space is not `garage' within the meaning of Section 2 (a-1) and, therefore, not sellable

independently as a flat or along with a flat.”

21. The following position emerges from the decision of the Hon’ble Supreme Court in

Nahalchand (supra):

a) The standalone garage is not a flat

b) Every space for parking motor vehicle is not a garage.

c) For the purpose of MoFA, the term “Garage” must be considered as would be

understood by a flat purchaser and

d) A garage must have a roof and wall on three sides.

22. As noted earlier, the basement is included in the definition of common areas and facilities

given in Section 3(j) of the Delhi Apartments Ownership Act. The parking areas are also

expressly included in the definition of common areas and facilities. The basements would mean

every basement provided in a multi-storeyed building irrespective of the use to which the

basement is put. Delhi Apartments Ownership Act does not exclude, from the purview of the

term common areas and facilities, a basement, which is used for car parking. Likewise, parking

areas, irrespective of whether such areas are open or covered, whether they are provided on the

surface or in the stilt area or in the basement would be a part of the common areas and facilities in

relation to a multi-storeyed building. A basement does not lose its character as such, merely on

account of use to which it is put. Similarly, a parking area is an area meant for parking of the

vehicles, wherever such areas may be located. As far as the term ‘garage’ used in Section 3(c) of

the Delhi Apartment Ownership Act is concerned, this in my opinion, contemplates a covered

space, which is provided for the exclusive use of a particular apartment owner and the other

apartments owner have no right in such a space, which necessarily needs to have roof and covered

atleast on three sides. To an ordinary apartment owner, a garage means a place where he can

safely park his vehicle under his own lock and key, to the complete exclusion of the other

apartment owners, though such garage need not necessarily be adjacent to the building in which

the apartment is located. The basement used for a parking the cars, in my opinion, does not

qualify as a garage since an individual allottee cannot put his own lock and key on it and despite

the security provided at the entrance of the basement and elsewhere in the building, it cannot be as

safe as an individual garage which can be locked by its allottee. If a standalone garage is

provided to an allottee, there is hardly any scope for an outsider accessing the said garage unless,

he breaks the locks put by the allottee on the garage. On the other hand, a basement used for car

parking of a large number of allottees is accessible to all of them and therefore, does not ensure

security and safety of the level available in a standalone.

23. It is true that nothing in law prevented the developer form charging the cost of the club area

and basement parking from the allottees, who were to pay on the basis of the super area which

included not only the apartment area but also the common area of the building. But, having not

done that, the developer cannot be allowed to charge separately from the allottees for the club area

and the basements used for car parking. In Nahalchand (supra), the Hon’ble Supreme Court,

while observing that the promotor is not put to any prejudice financially by treating open parking

space / standalone parking spaces as part of the common areas since he is entitled to charge for the

same, held that if a promotor does not fully disclose the common areas and facilities he does so at

his own peril. It was further observed that the standalone parking space would not cease to be a

part of the common areas and facilities, merely because the promotor has not described the same

as such in the advertisement or agreement with the flat purchaser. Since, the developer herein, did

not include the club area and the basement designated for car parking, amongst the common areas

and facilities of the building at its own peril and must necessarily bear the consequences of the

such an act on its part. The developer cannot be allowed to charge for the common areas and

facilities which he deliberately did not include as a part of the said areas and facilities.

24. It was also submitted on behalf of the developer that had the club area and basement parking

been included while determining the sale price of the apartments, the cost to the allottees would

have been much higher. Even if that is so, the law did not permit the developer from excluding

the said areas, while determining the price of the apartment on the basis of its super area

comprising the apartment area as well as the common area.

25. For the reasons stated hereinabove, I hold that the developer is not entitled to recover the

charges for the club area and car parking from the allottees. The club Area and the Basement

Parking being common to all the allottees, it would be for the Association of Apartment Owners

to regulate use by the allottees.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 351 OF 2015

CAPITAL GREENS FLAT BUYER ASSOCIATEION Vs DLF UNIVERSAL LIMITED & ANR.

BEFORE:

HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER

Dated: 3-1-2020

The opposite party namely DLF Universal Limited (hereinafter referred to as

“Developer”) is the developer of the large residential project namely “DLF Capital Greens”

developed on the land situated at Shivaji Marg, Moti Nagar, New Delhi. 2870 residential

apartments in 23 residential towers have been constructed by the developer in three phases, the

first and second phase comprising of 10 towers each and the third phase comprising of three

towers. Laresen & Toubro was appointed as the Principal Contractor for constructing the

aforesaid residential apartments. The total apartment area of phase I and II is stated to be

332864.317 sq. mtr, whereas the aggregate of the apartment area and common areas for phase I

and II is stated to be 423548.194 sq. mtr. Phase I and II were launched at the same time whereas

Phase III was launched at a later date.

2. The residential apartments constructed by the developer were allotted to different persons

who executed Apartment Buyers’ agreement with the developer on different dates. The total price

of the apartment was calculated on the basis of its super area as noted in Clause 1.1 of the

Agreement, which reflected not only the super area but also the apartment area of the apartment,

subject matter of the agreement. The super area and the apartment area for the purpose of

calculating the price of the apartment were defined as under in the agreements executed between

the developer and the allottees:

“Definition of super area –

Super area for the purpose of calculating the total price in respect of the said

apartment shall be the sum of apartment area of the said apartment, its pro-rata share of

common areas in the entire said building and pro-rata share of other common areas

outside building, as may be applicable, earmarked for use of all apartment alltotees in the

DLF Capital Greens including the exclusive community / recreational facility with

swimming pool, toilets/ change room, multipurpose hall, gymnasium and restaurant etc.

etc.

Whereas the Apartment Area of the said apartment shall mean entire area enclosed

by its periphery walls including area under walls, columns, balconies deck, cupboards and

lofts etc. and half the area of common walls with other premises / apartment, which form

integral part of said apartment and common areas shall mean all such parts / areas in the

DLF Capital Greens which the allottee shall use by sharing with other occupants of DLF

Capital Greens, including entrance lobby, driver’s/ common toilet at ground floor, lift

lobbies, lift, shafts, electrical shafts, fire shafts, plumbing shafts and service ledges on all

floors, common corridors and passages, staircases, mumties, services areas including but

not limited to lift machine room, overhead water tanks, underground water tanks and

pump room, electric sub-station, DG set room, fan rooms, laundromat, maintenance

offices / stores, security / fire control rooms, sewage treatment plant, the exclusive

community / recreational facility and architectural features, if provided.

Super area of the said apartment provided with exclusive open terrace (s) shall also

include area of such terrace (s), apartment allottee however, shall not be permitted to

cover such terrace (s) and shall use the same as open terrace only and in no other manner

whatsoever.

It is specifically made clear that the computation of super area of the said apartment

does not include the following:

Sites for shops and shop (s)

Sites / Buildings area of community facilities / amenities like Nursery / primary / Higher

Secondary School, Club (exclusive community / recreational facilities for DLF Capital

Greens) / Community centres, Dispensary, Creche, Religious Buildings, Health Centres,

police posts, electric sub-station, dwelling units for economically weak sections / service

personnels.

Roof / top terrace above apartments excluding exclusive terraces allotted to apartments /

penthouses,

Covered / Open car parking area within / around buildings for allottees/ visitors of DLF

capital greens.

3. It was clarified in the agreements that the super area mentioned therein was tentative for the

purpose of computing total price and that at the time of agreement the tentative percentage of the

apartment area to the super area of the apartment was about 78.5%. It was also clarified that super

area as well as percentage of the apartment area to the super area might undergo changes during

construction and final super area would be confirmed upon completion of the construction.

Clause 1.6 and Clause 10 of the Agreement, which are relevant in this regard, read as under:

“1.6 The allottee agrees that the total price of the said apartment is calculated on

the basis of its super area only as mentioned in Clause 1.1 except the parking space (s)

which are based on fixed valuation and that the super area of the said apartment as stated

in the agreement is tentative. The final super area of the said apartment shall be

confirmed by the company only after the construction of the said apartment is completed

and the occupation certificate is granted by the competent authority (ies). Total price

payable for the said apartment shall be recalculated and upon confirmation by the

company, and any increase or decrease in the super area of the said apartment shall be

payable by or refundable to the allottee, as the case may be without any interest at the

same per sq. ft. rate without any kind of rebates allowed. If there shall be an increase in

super area, the allottee agrees and undertakes to pay for the increase in super area

immediately on demand by the company and if here shall be a reduction in the super area,

then the refundable amount due to the allottee shall be adjusted by the company from the

final instalment (as set forth in the schedule of payments in Annexure III).

For avoidance of any doubt it is clarified that total price of the said apartment is

based on super area which is tentative and subject to change. The super area, apartment

area and percentage (%) of the apartment area to the super area is tentative and liable to

change and the allottee shall have no right to raise any kind of objections, dispute, claim

due to change in the apartment area, super area and / or percentage (%) of apartment

area to super area, as the said apartment is being sold only on the basis of the super area

and the allottee accordingly shall be liable to pay as per the super area. The definition of

super area, apartment area and the percentage of the apartment area to the super area as

on the date of execution of this Agreement are described by the company in Annexure II

which forms part of this agreement and the same is understood by the allottee and the

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allottee affirms that the allottee shall have no right to raise any kind of objection / dispute

/ claim at any time with respect to the basis of charging the total price or any change in

the super area.”

10. Alternation / modification

In case of any alteration / modificaitons including as mentioned in the clause above,

resulting in increase / decrease of more than 15% in the super area of the said apartment

or material / substantial change in the sole opinion of and as determined by the company,

in the specification of the material to be used in the said apartment, any time prior to the

grant of occupation certificate, the company shall intimate in writing to the allottee the

proposed changes thereof and the resultant change, if any, in the total price of the said

apartment to be paid by the allottee. The allottee agrees to deliver to the company any

objections to the changes within 30 days from the date of notice of the changes. In case

the company does not receive any written objection from the allottee within thirty days of

the dispatch of the notice of changes then the allottee shall be deemed to have given

unconditional consent to all such alterations / modifications and for payments / refunds, if

any, to be paid / refunded in consequence thereof. If the company receives the objections

in writing within the stipulated time from the allottee of the proposed changes then the

company may either decide not to go ahead with the proposed changes or may decide to

cancel this agreement without further notice and refund the entire money received from

the allottee with interest @ 6% per annum within ninety days from the date of receipt of

objections from the allottee by the company. In case the company decides to cancel the

agreement, the company shall be released and discharged from all its obligations and

liabilities under this Agreement and the allottee shall have no right, interest or claim of

any nature whatsoever on the said agreement and the company shall be free to resale or

deal with the said apartment and the parking space (s) in any manner whatsoever. The

company shall have no other liability except to refund the amount as stated above.

The allottee agrees and understands that in case the company is able to get

additional Floor Area Ratio (FAR), the company shall have the sole right to utilize the

additional FAR in the manner it may deem fit including but not limited to, by making

addition to the said building or making additional buildings in and around the land of the

said complex and the company shall be entitled to get the electric, water, sanitary and

drainage systems of the additional construction thereof connected with the already

existing electric, water, sanitary and drainage systems in the said complex. The allottee

acknowledges that the allottee has not made any payment towards the additional FAR and

shall have no right to object to any of such construction activities carried on, on the said

building / said complex.”

4. In terms of clause 11 (a) of the agreement, the developer was to endeavour to complete

construction within a period of thirty six months from the date of the application unless delay was

caused due to force-majeure conditions and the reasons specified in Clause 11(b) and 11(c) of the

agreement.

5. The complainant in CC/351/2015 and CC/2047/2016 is registered as a Society under the

provisions of Societies Registration Act, 1860 and comprises of the allottees of residential

apartment in the aforesaid project of the developer. Its aims and objectives include the protection

of the interest of its members by representing before appropriate authority / Judicial bodies, and to

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coordinate with DDA, MCD and DLF to ensure timely completion of the project DLF Capital

Greens. The said complainant therefore, qualifies as a recognized Consumer Association within

the meaning of Section 12 of the Consumer Protection Act and is competent to institute this

complaint on behalf of the allottees, who have approached it for this purpose.

The allottees on whose behalf these two complaints have been instituted were allotted residential

apartments in the above referred project, for varying considerations. All of them booked

apartment in the above referred project and later executed Apartment Buyers’ agreement with the

developer. Their case is that the said agreements were unilaterally prepared by the developer and

since the Earnest Money paid by them, along with other charges could be forfeited in the event

they refused to execute the agreement as drafted by the developer they had no option except to

sign on the dotted lines. Since the construction of the apartments did not make desired progress,

the developer intimated the allottees to either accept delay of sixteen months or to exit from the

project by taking refund with simple interest @ 9% per annum, claiming that there had been delay

in getting the approvals from the competent authorities which was beyond the control of the

developer, as a result of which the developer was compelled to revise the time period for

completion of the construction from 36 months to 52 months barring any force-majeure situation.

It was stated in the communication sent to the allottees that since the approvals for construction of

the basement had been received earlier, they had completed the basements but had to stop the

work as MCD had not approved the building plans which came to be approved only in October,

2011.

6. Since possession of the apartment was not delivered within the time period committed by

the developer, the society, which is complainant in CC/351/2015 approached this Commission,

seeking possession of the allotted apartments to the concerned allottee along with compensation.

They have also disputed the amount collected by the developer alleging increase in super area of

the apartment. The complainant is also seeking refund of the charges recovered from the allottees

for providing car parking and club facility and service tax. They are also demanding timely

payment rebate and early payment rebate to all the apartment owners.

7. After institution of CC/351/2015, the opposite party offered possession to the allottees, who

were required to execute an Indemnity-cum-Undertaking, in order to take possession of the

apartment. Clause 13 of the Undertaking required the allottee to confirm and acknowledge that by

accepting the offer of possession, he would have no further demands / claims against the

developer, of any nature whatsoever. The Indemnity-cum-Undertaking so sought by the

developer has been termed as illegal in CC/2047/2016 instituted by the Association, on behalf of a

number of allottees for this project.

8. During pendency of the above referred two consumer complaints i.e. CC/351/2015 and

CC/2047/2016, a number of allottees sought withdrawal of their respective claims and therefore, it

was directed that the allotments made to such allottees will not be considered while deciding the

consumer complaint. CC/351/2015 and CC/2047/2016 now continue on behalf of the following

allottees:

CC/351/2015

Sl. No.

Name of the Allottee

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1. Usha Malpani & Shreekant Malpani

2. Abhishek Goyal & Sushil Kumar Goyal

3. Kapil Poply & Garima Poply

4. Om Parkash Aggarwal (HUF)

5. Parveen Aggarwal (HUF)

6. Mukesh Mittal

7. Om Prakash Agrawal

8. Manish Khubchandani

9. Jugminder Singh Chawla & Surinder Kaur

10. Mukul Bhatnagar

11. Ajir Kumar Gupta

12. Ashok Purswani & Sunita Purswani

13. Nitya Nand Gautam & Vipul Gautam

14. Angel Gupta

15. Shiwali Arora

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16. Puneet Thukral & Preeti Thukral

17. Manish Roongta & Payal Agarwal

18. Akash Aggarwal & Jasmit Aggarwal

19. Amit Gupta

20. Sanjay Kumar Jha

21. Shamit K. Mehta

22. Anita Khanna & Anil Khanna

23. Anil Sagar

24. Harinder Arora

25 Naresh Dua

26. Ram Chandra Maheshwari

27. Krishna Maheshwari

28. Pankaj Arora & Kashi Arora

29. Neha Rani & Deepak Ranjan

30. Subhash Sood

31. Vikas Sethi & Shivani Sethi

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32. Neena Arora

33. Manoj Kumar Matai & Neelam Matai

34. M. S. Gupta & Shanta Gupta

35. Harsh Garg & Soni Garg

36. Shipra Singh & Shashikala Singh

37. Sharwan Kumar Kedia & Kiran Devi

38. Anil Kumar Paliwal & Anita Paliwal

39. Raman Sharma

40. Sorabh Malhotra & Priyanka Malhotra

41. Vishal Murarka & Ravi Murarka

42. Sherine Jairo

43. Shiv Kumar Choudhary & Anita Choudhary

44. Devender Kumar Mahajan

45. Yatish Saxena & Seema Saxena

46. Amitabh Agrawal

47. Sanjeev Gupta

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48. Vikesh Punj & Bharti Rattan

49. Praajya Pandey

50. Anubhav Gupta & Aditi Gupta

51. Mohit Khajanchi & Subhash Kumar Khajanchi

52. Rohit Khajanchi & Subhash Kumar Khanjanchi

53. Pawan Kumar Agrawal & Tripti Agrawal

54. Harish Baveja

55. Gaurav Malhotra & Chyandra Mohini Malhotra

56. Sandeep Bansal & Ankit Bansal

57. Kailash Chander Sharma

58. Jaya

59. Gajendra Prasad Sharma & Suchitra Kumar

60. Antim Lata Kapoor & Akshat Kapoor

61. Vijay Kumar Budhiraja

62. Anil Kumar Jain & Anamika Jain

63. Anil Kumar Rastogi

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64. Ashok Kumar Kharey & Seema Kharey

65. Sunil Venaik

66. Pushpinder Uppal

67. Nagaraju Duthaluri & Amrutha Kumar Duthaluri

68. Naresh Chand Maheshwari

69. Rakesh Kumar Gulati & Sunita Gulati

70. Rajesh Maggu

71. Hind P. Bhatia

72. Gagandeep Singh Sodhi & Navneet Kaur

73. Ruchi Sharma

74. Rashmi Agarwal

75. Kaleemuddin

76. Beena Singh & Anna Walia

77. Sunil K. Kanojia & Nainu S. Kanojia

78. Deepak Miglani & Dolly Miglani

79. Mithilesh Kumar & Suman Singh

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80. Vini Goyal & Ashwani Goyal

81. Ashok Kumar

82. Indra Mohan Thakur, Nidhi Thakur 7 Bhaskar Thakur

83. Vanita Aggarwal & Manoj Aggarwal

84. Anil Kumar Goel

85. Nishant Krishna & Nitin Krishna

86. Ishpreet Singh Bhasin

87. Sheetal Sajdeh

88. Pankaj Kumar & Archana

89. Anupam Saharia

CC/2047/2016

Sl. No. Name of the Allottee

1. Gurraj Singh Malik

2. Shusheel Kaul

3. Shyam Narayan / Vibha Parashar

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4. Harbans Singh / Gurmeet Kour

5. Bhupender Mohan Jyani

6. Amit Kumar Singhal / Nutan Agrawal

7. Inderjit Singh

8. Rajendra Prasad / Sheela Devi

9. Mahesh Kumar Ganesh Shankar Bajpai

10. Sunila Bhatia

11. Jatin Gupta / Santosh Gupta

12. Padam Kumar Jain / Sonia Jain

13. Manish Kumar Gupta

14. Priya Jain / Neena Jain

15. Rahul Bhatia / Harleen Bhatia

16. Virendra Kumar Jain / Akshay Jain

17. Subhash Chand Ahuja / Lalita Ahuja / Sarthak Ahuja

18. Atmakuri Ramakrishna Rao / Cini Varghese

19. Krishna Kant Mital / Suchitra Mittal

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20. Jaideep Singh Walia

21. Manjit Kaur Walia / Amarjit Singh Walia

22. Siraj Mohammad /Riaz Mohammad

23. Satinder Juneja / Kamini Juneja

24. Salik Ram Mishra

25. Kamal Rohilla / Lalit Rohilla

26. Ravendra Garg / Alka Garg

27. Ashok Dayal

28. Amit Sud / Jasneet Kaur Wadhwa

29. Adil Moin Khan

30. Deepak Chawla / Priyamvada Chawla

31. Yashpal Mehta / Kavita Mehta

32. Tapan K Raut / Seema Raut

33. Manjari Goel / Rakesh Goel

34. Santanu Choudhury

35. Neelam Dayal

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36. Sudhir Dubey

37. Khushal Bhatia / Hetal Bhatia

38. Renu Oberoi / Jagdish Kumar Oberoi

39. Anurag Hasija / Bernadine Hasija

40. Ajay Kathuria / Ruchi Kathuria

41. Ritu Chaturvedi

42. Vishal Salgotra

43. Vikas Mittal / Gunjan Mittal

44. Vipin Kumar Sawhney / Rinku Sawhney

45. Chand Roy Ghura

46. Swatantra Aggarwal / Anita Aggarwal

9. Other consumer complaints, subject matter of this order have been instituted by individual

allottees of the aforesaid project.

10. During the course of arguments on 20.12.2019, it was made clear to the parties that in this

batch of consumer complaints, this Commission will adjudicate only on the following issues:

“a) Increase in super area

b) Car parking charges

c) Club charges

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d) Compensation for the delay in offering possession

e) The consequences of the OP insisting on execution of an undertaking

in the format devised by it.

Accordingly, the complainants in these matters have restricted their prayers only to the

above referred five issues. The complaints in which the allottees wanted additional reliefs have

been separated.

11. Since the possession was offered by the developer after institution of CC/351/2015, the

complainants during the course of hearing on 27.10.2016 expressed willingness to take possession

of the apartments depositing the disputed amount with this Commission. The said offer however,

was not accepted by the developer. Thereafter, it was agreed in CC/351/2015 on 22.12.2016 that

the developer shall convey the entire amount due from the allottees on whose behalf the aforesaid

complaint had been filed to them and on the allottees paying the entire amount so conveyed by the

opposite party without prejudice to their rights and contentions in the consumer complaint, the

possession would be delivered to them. The deadline fixed by the opposite party for availing the

discount / rebate was also extended by this Commission. Vide subsequent order dated 17.2.2017,

it was directed that wherever the allottees were aggrieved from the demand letters issued to them

in compliance of the order of this Commission dated 22.12.2016, the developer shall issue revised

demand letter after adjusting the timely rebate payment wherever such rebate was applicable and

additional down payment rebate wherever it was applicable, in terms of the letter of the developer

dated 7.8.2015. It was also directed that the developer shall not insist upon withdrawal of the

complaint or settlement of all the issues between the parties as a pre-requisite condition for

offering possession. The timely rebate was to be available only wherever conditions No. (a) & (b)

in terms of Clause 2 of the letter of the developer dated 7.8.2015 stood fulfilled.

12. The complaints have been resisted by the developer on several grounds. It has been

inter-alia stated in the written version filed by the developer that there has been no deficiency on

its part in rendering services to the allottees and they have not indulged into any unfair trade

practice or restrictive trade practice. It is further stated in the reply filed by the developer that at

the time of booking itself, the allottees were informed that the plans had not yet been sanctioned

and the schedule for delivering possession of the apartments was tentative.

As regards early payment rebate and timely payment rebate, it is submitted that early

payment rebate has been given to all the allottees who made early payment, whereas timely

payment rebate which was to be given as an adjustment, has been given to all the allottees who

were not in default at the time possession was offered.

As regards the delay in offering possession, it is stated that the developer had applied for

the approval of the building plan of Phase-I in May 2009 but the approval was granted in March

2010, though usually it takes three to six months to grant such an approval. It is alleged that the

building plans for Phase-II could not be filed earlier since it took seven months for revision of the

lay out plan and the said approval came only in August 2011 despite having been applied in

August 2010. As regards Phase-III, it is stated that the approval came in February 2013, though it

was applied in January 2011. It is also submitted that in view of the aforesaid delays, the allottees

of Phase-II & Phase-III were given option of exiting from the project, by taking refund with 9%

interest.

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It is also stated that Director of Industrial Safety and Health (Labour Department) of

Government of NCT had prohibited construction at the site of this project on 26.05.2014, on

account of an unfortunate accident involving injury to a worker. The construction work was

permitted to be resumed only on 16.09.2014 in respect of 5 towers w.e.f. 06.01.2015 in respect of

another five towers, w.e.f. 30.01.2015 in respect of yet another 5 towers, and w.e.f. 30.07.2015 in

respect of all the 23 towers. The aforesaid Prohibitory order, according to the developer, resulted

in delaying the construction. It is also submitted that though the allottees were given escalation

free allotments, they are entitled to compensation @ Rs.10 per sq. feet of super area in terms of

clause 14 of the agreements though it would be payable to those allottees who had made timely

payment of the installments.

It is stated in the written version filed by the developer that common areas and facilities u/s

3 (j) of Delhi Apartment Ownership Act does not include the common areas and facilities which

were designated by the developer in writing prior to allotment or which were reserved for use of

certain apartment or apartments to the exclusion of other apartments and the allottees were clearly

informed about the areas which were to constitute part of the common areas and the areas in

which they would have to pay separately. The Club House and the basement parking, according

to the developer, did not form part of the common area.

SUPER AREA

13. In terms of Annexure-II of the Agreements executed between the developer and the

allottees, the price of the apartments was to be calculated on the basis of its super area. It was also

noted in the above referred clause that the super area mentioned in clause 1.1 was only tentative

and could change. The allottees had agreed not to object to the change of the super area.

However, if the super area was to increase/decrease by more than 15% on account of any

alteration/modification/change, the allottees were required to be intimated in writing before

carrying out the proposed change and had an option to take refund of the payment which they had

made to the developer alongwith interest.

The super area in terms of Annexure-II of the Agreements was to consist of the apartment

area, pro-rata share of the common areas of the building and pro-rata share of other common areas

outside the building, as defined therein.

14. In the project subject matter of these complaints, the developer has not sought additional

payment for increase in the super area beyond 15%. Therefore, no prior notice to the allottees

was required before increasing the super area and to the extent there has been actual increase in

the super area, as defined in Annexure-II of the Agreements, the allottees are required to pay for

such an increase. The allottees had also agreed that not only the super area but even the

percentage of the apartment area to the super area could change and they would have no objection

to change of the said ratio, though the case of the OP is that the ratio has not changed and the

same continues to be 78.5% of the super area. The developer has filed the affidavit of its

Additional Chief Architect Mr. Mukul Gupta who has stated on oath that the final super area

based on the approved completion drawings which includes floor plans, unit area plans, elevation

and sections of the building was verified and quantified by external experts M/s. GAA Advisory,

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who also determined the common area and pro-rata share of the apartment in the common areas.

The detailed report of GAA Advisory in respect of all the three phases has been filed with the

Convenience Compilation filed by the developer. It is stated in the affidavit that the super area so

determined by GAA Advisory was rechecked and verified by the School of Planning and

Architecture, Delhi and the reports of the said School have been filed with the Convenience

Compilation.

Though, the affidavits of the experts from GAA Advisory and the School of Planning and

Architect have not been filed, I see no reason to disbelieve their respective report supported by an

affidavit of the Architect, when no material to the contrary has been field by the allottees.

Therefore, I have no hesitation in holding that the additional demand on account of increase in the

super area, which has been restricted to 15% of the super area stated in the agreements, is

justified. Though, the ratio of the apartment area to the super area could also change, it is stated

in the affidavit of Mr. Mukul Gupta that the final percentage of the apartment area to the super

area of the apartment is not less than 78.5% and there is no material to the contrary filed by the

allottees. Therefore, I find no justification in the grievance with respect to the demand on

account of increase in the super area of the apartments.

CLUB CHARGES

15. The next question which arises for consideration is as to whether the developer is entitled to

recover club charges and parking charges in addition to the cost of the apartment calculated on the

basis of its super area. It is evident from the definition of the super area given in the agreements

that the said area does not include covered / open car parking area within / around the buildings

for the allottees / visitors, nor does it include the club area. The submission of the allottees is that

the club as well as the parking areas, whether open or covered, form part of the common areas and

services as defined in Delhi Apartments Ownership Act and therefore, the developer cannot

charge separately for the use of the club and parking areas. The submission of the developer on

the other hand is that the said areas are not included in common areas and facilities and therefore,

it was entitled to charge separately for the said facilities.

16. Section 3 of the Delhi Apartments Ownership Act, 1986 to the extent it is relevant for the

purpose of deciding these complaints read as under:

“ 3. Definitions – In this Act, unless the context otherwise requires, -

use, …………………………………………….. and includes any garage or room (whether or

not adjacent to the multi-storeyed building in which such apartment is located) provided

by the promoter for use by the owner of such apartment for parking any vehicle or, as the

case may be, for the residence of any domestic aide employed in such apartment;

…………………..

(j) “common areas and facilities”, in relation to a multi-storeyed building, means—

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(iii) the basements, cellars, yards, gardens, parking areas, shopping centers,

schools and storage spaces;

(viii) all other parts of the property necessary or convenient to its existence,

maintenance and safety, or normally in common use;

…………………..

(q) “limited common areas and facilities” means those common areas and facilities

which are designated in writing by the promoter before the allotment, sale or other

transfer of any apartment as reserved for use of certain apartment or apartments to the

exclusion of the other apartments;

17. Rule 3 of the Delhi Apartments Ownership Rules, 1987 to the extent it is relevant reads as

under:

“3. Common areas and facilities – Thus other common areas and facilities in terms of sub

clause (vii) of clause (j) of Section 3 shall be such areas and facilities which are provided

on the land earmarked for apartments and declared as such in the Deed of Apartment and

specified in Form ‘A’ and shall also include.

i. Children’s playing areas, swimming pool, tennis courts, badminton courts, areas

providing for other sports facilities,

ii. Community halls for use of apartment owners on occasions like marriage or

other social and like functions,

iii. Areas which are for the common use of the apartment owners, forming part of

the sanctioned plan under the bye-laws of the authority and

(iv) Any additional space not counted in the permissible floor space shall also be

treated as common area.”

18. It can hardly be disputed that since a club is meant primarily for providing sports and

recreational facilities to its members would form part of the common areas and facilities in terms

of sub-clause (vii) of Clause (j) of Section 3 of Delhi Apartments Ownership Act read with Rule 3

of Delhi Apartments Ownership Rules, 1987.

BASEMENT PARKING

19. The next question which arises for consideration is as to whether the basement parking

provided by the developer for the allottees qualifies as a garage or it qualifies as the basement or

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parking areas, which are included in the definition of common areas and facilities in Delhi

Apartments Ownership Act. It is stated in a Note submitted by the Developer on parking that this