Flat 41.54 sq ft smaller than promised: Mumbai buyer wins Rs 7.39 lakh

The commission ordered the Mumbai based real estate developer and its proprietor, to jointly pay Rs 6,64,640 for the area shortfall, Rs 50,000 for mental agony and harassment, and Rs 25,000 towards legal expenses.

The order, passed on September 2, also carries 9 per cent simple interest on the area-shortfall amount from the date of filing until realisation.

The ruling comes nearly a decade after possession of the flat was handed over in 2016, underscoring that a developer’s statutory and contractual obligations can continue well beyond the date of physical possession.

Agreement promised 560 sq ft, actual area found to be 518.46 sq ft

The dispute relates to flat no XYZ in a housing building in Malad (West), Mumbai. On January 11, 2016, the complainant, executed a registered agreement for sale with the builder for a flat with a carpet area of 560 square feet. Possession was handed over on November 22, 2016.

After taking possession, he engaged a registered architect to measure the actual carpet area. The architect’s report, which the commission relied upon, recorded the carpet area as 518.46 square feet — 41.54 square feet less than what was contractually promised.

He valued the shortfall at Rs 16,000 per square foot and claimed Rs 6,64,640 as compensation. He also sought damages for mental agony and reimbursement of legal costs.

The Indian Express report added that the builder contested the architect’s report, calling it “false”, but did not produce an independent measurement or counter-survey to challenge it. The commission therefore accepted the registered architect’s findings.

“The Opposite Parties (Builder and proprietor) cannot unilaterally reduce the agreed-upon living space without a corresponding reduction in consideration or express written consent from the purchaser,” the commission said, holding that the shortfall amounted to deficiency in service and an unfair trade practice.

Why did the commission reject the builder’s defence?

The builder argued that the complainant was a landowner who had received the flat as part of a development arrangement, and therefore was not a “consumer” under the Consumer Protection Act. The commission rejected this contention.

It held that where a landowner receives a constructed apartment as consideration under a development agreement, the developer is still providing construction services. Since the man had taken possession of the flat for residential use, he qualified as a consumer in relation to structural deficiencies and statutory non-compliance.

On the question of limitation, the builder claimed the complaint was time-barred. The commission, however, noted that the failure to obtain a complete Occupation Certificate (OC) and to form the co-operative housing society were continuing defaults. It therefore held that the limitation objection was not sustainable.

Part OC, structural deviations and society formation

Beyond the carpet-area issue, the man also complained that the builder had obtained only a “Part Occupation Certificate” and had not facilitated the formation of a co-operative housing society.

The commission recorded that the Slum Rehabilitation Authority had issued a Part OC on November 11, 2016, covering floors two to 16.

However, structural deviations existed on the ground and first floors, including:

• Conversion of stilt parking space into an office.
• Alteration of the first-floor area that had been represented as a health club and common area.

The commission held that the builder’s obligations did not end with handing over possession or securing a Part OC. It directed the developer to complete all pending building compliances, including obtaining the necessary clearances and facilitating society formation, within four months.

Compensation and interest

The commission partly allowed the complaint and awarded:

• Rs 6,64,640 for the 41.54 sq ft carpet-area shortfall
• Rs 50,000 for mental agony, stress and harassment
• Rs 25,000 towards legal expenses

This takes the fixed compensation to Rs 7,39,640. In addition, the commission ordered 9 per cent simple interest on the Rs 6,64,640 component from the date of filing of the complaint until the amount is actually paid. The presiding members of the commission were Poonam V Maharshi and Dr Nisha Amol Chavhan.

Here are some key takeaways for flat buyers

The order highlights several important points for homebuyers in Maharashtra and beyond:

• Verify carpet area at possession: Buyers should check the actual carpet area of the flat against the registered agreement for sale.
• Independent measurement helps: An assessment by a registered architect or surveyor can serve as strong evidence in case of a shortfall.
• Developer obligations continue post-possession: Statutory duties such as obtaining a full OC, correcting structural deviations and forming the housing society do not necessarily end when keys are handed over.
• Unilateral reduction not allowed: A builder cannot reduce the agreed living space without either reducing the price proportionately or obtaining the buyer’s express written consent.

Consumers facing similar issues can approach the consumer helpline in their state. In Maharashtra, the contact numbers are 022-22821810 and 022-22821770. The National Consumer Helpline can be reached at 1915.