Builder Charging For Open Parking Against RERA Provisions: NCDRC Holds ATS Infrastructure Liable For Deficiency In Service

Brief Facts of the Case

The complainant purchased a flat from the original allottees for Rs. 39,00,000 in a project by ATS infrastructure/builder. A transfer fee of Rs. 2,19,102 was paid to the builder. The apartment was endorsed in the complainant's name, and physical possession was handed over by the builder, who then offered to execute the conveyance deed. However, the complainant alleged that the conveyance deed could not be executed without a Completion and Occupation Certificate, as required by the Punjab Apartment and Property Regulation Act, 1995 (PAPRA). The builder did not have this certificate when handing over possession, violating PAPRA provisions. The complainant rejected the conveyance deed offer due to non-compliance with the agreement terms and mentioned that no maintenance agreement was executed. Additionally, the builder received Rs. 50,000 for open car parking charges against the rules. The complainant filed a consumer complaint with the State Commission of Punjab, requesting that the builder be directed to obtain an Occupation Certificate from the appropriate authority in accordance with the terms of the Buyer's Agreement. The State Commission directed the builder to pay a compensation of Rs. 40,000 for mental agony, harassment, and litigation costs. Additionally, the builder was ordered to refund Rs. 50,000 for “open car parking” with 8% interest. Consequently, the builder appealed against the State Commission's order to the National Commission.

Contentions of the builder

The builder challenged the complaint, arguing that they had obtained a partial completion certificate for the project and that the complainant had willingly taken possession without objection. The builder stated they had received necessary approvals from the Municipal Council under relevant municipal building regulations and had submitted the required forms, allowing occupancy of the apartment. Additionally, the builder claimed the complainant did not proceed with executing the conveyance deed and asserted there was no deficiency in their service, requesting the complaint to be dismissed.

Observations by the National Commission

The National Commission observed that the main issue was whether the builder was deficient in service when delivering the flat to the complainant. The complainant took possession with a valid partial completion certificate and did not provide evidence of being forced to take possession, nor did he raise objections at the time. Furthermore, the builder charged Rs. 50,000 for the open parking space, paid by the original allottee. The Supreme Court's decision in M/S Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh established that the subsequent allottee inherits the original allottee's rights. The Commission further observed that charging for open parking is against RERA provisions, constituting a deficiency in service, and the builder must refund the amount with 6% interest from the date of deposit. The commission highlighted that the compensation of Rs. 40,000 for mental agony and harassment awarded by the State Commission was appropriate and had been complied with by the builder.

The National Commission modified the State Commission's order and directed the builder to refund Rs. 50,000 with 6% interest per annum from the date of deposit until realization.

Case Title: ATS Infrastructure Limited Vs. Ashwani Gautam

Case Number: F.A. No. 755/2023

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