WG. CDR. ARIFUR RAHMAN KHAN AND ALEYA SULTANA AND ORS. v. DLF SOUTHERN HOMES PVT LTD. (NOW KNOWN AS BEGUR OMR HOMES PVT. LTD.) AND ORS.

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A of the penalty imposed on the developer has been passed on to the purchasers. In view of the terms of the ABA and the explanation which has been submitted by the developer, there is no deficiency of service in regard to the demand of interest payable on the tax which was required to be deposited with the revenue. B Electricity

48Copy pinpoint48. The submission by Mr. R. Balasubramanian, learned Senior Counsel is that the initial collection of Rs. 1.50 lacs from each buyer towards BESCOM /BWSSB charges for electricity and water are admitted. Subsequently, invoking clause 23(b) of the ABA, the developer collected two lacs from each buyer towards additional electricity charges. The appellants contest the entitlement of the developer to claim these charges. Clause 23(b) of the ABA is in the following terms: “23. (b) Payments and other charges for bulk supply of electrical energy If Company or the Maintenance Agency decides to apply for and thereafter receives permission from BESCOM or from any other body / commission/ regulator/ licensing authority constituted by the Government of Karnataka for such purpose, to receive and distribute bulk supply of electrical energy in the Said Project/Said Complex then the Allottee undertakes to pay on demand to the Company proportionate share as may be determined by the Company of all payments and charges paid/ payable by the Company or the Maintenance Agency to BESCOM…The F proportionate share of cost incurred by the Company for creating infrastructure like HT feeder, EHT sub stations etc shall also be payable by the Allottee on demand.”

49Copy pinpoint49. According to the developer, initially an electricity connection was provided by BESCOM without insisting on the requirement of an electric sub-station. Subsequently as occupation certificates were received for additional towers, BESCOM required a dedicated electric sub-station which was constructed by the developer at a cost of Rs. 18.01 crores. The pro rata cost for setting up this additional infrastructure was, according to the developer, payable by the allottees. When offers for possession were issued to the buyers, the following stipulation was contained in the letter:

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HOMES PVT. LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]

“Our initial effort was to obtain and energize the power supply to A the entire project of 1830 apartments through individual ll KV feeders from Golahalli 66/llKV Substation. On this basis, the costing for infrastructure towards provisioning of utilities as per clause 1.14, 1.15, 23(b) and JDC of ABA was estimated at rate Rs. 127.96/sft., which was reflected in the Final Demand to D B Block customers. However, after a detailed evaluation of the load requirement for the project as per norms, BESCOM has now stipulated that, in accordance with clause 3.2.4 of KERC Regulations, we establish a dedicated 66/11 kv Substation within our project site to cater to the needs of the project, instead of the earlier proposed scheme of 11 Kv feeders from Golahalli. The C increase in cost because of this new sub-station and allied works, over and above the originally envisaged 11KV scheme is estimated @Rs. 18.01 Cr., thereby increasing the total infrastructure cost recovery towards provisioning of utilities to Rs. 188.00/sft. In view of the above said amounts are being recovered on the basis of provisional estimates. On commissioning and energizing the substation, the company shall arrange a certificate from independent chartered accountant/ chartered engineer to arrive at the actual cost incurred. Your share of the said actual cost by the Company shall be duly intimated to you accordingly. If it is found that excess amount paid by you, over and above the actual cost incurred by the company, said excess amount so collected shall be refunded to you without interest. If the actual expenses exceeds the estimated amount computed @Rs. 188/-sq. ft. then demand for the shortfall amount shall be raised through further demand on the owner of the property and shall be payable by you. We would further like to bring to your kind attention that the provision of 66/llKV substation will ensure better quality uninterrupted power supply as compared with the previously planned scheme of 11KV reeders.”

50Copy pinpoint50. Mr. R. Balasubramanian, learned Senior Counsel contends that clause 23(b) relates to receiving and distributing the bulk supply of electrical energy to “the said project /said complex” which is defined as “project under the name and style of “New Town DLF BTM Extension”. According to the submission, the charges have been collected for the entire New Town project and not for Westend Heights alone. In this context it has also been submitted that distribution of electricity is H

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A governed by the KERC Regulations 2006. While planning the project, the developer calculated the cost of the 66/11 KV sub-station and collected charges from each of the 1830 buyers. Hence, it has been submitted that there was no requirement of additional bulk supply of electricity for the nineteen hundred buyers. In this context, the formulation in the written submissions is extracted below: B “(under) regulation 3.02 (e) of KERC (Conditions of Supply of Electricity by the Distribution Licensee) Regulations 2004, it is mandatory to set up 66 KV supply line/ KV substation if the demands goes beyond 7500 KVA. Further under regulation 3.2.4 KERC (Recovery of Expenditure for Supply of Electricity) C Regulations 2004 : “In case of layouts/buildings requiring power supply and the requisitioned load is more than 7500 KVA, the developer/ Applicant shall provide the space for erection of sub- station and also bear the entire charges of such a sub-station and associated lines/equipments. The work shall be carried out either by the Licensee duly recovering the charges as per estimate or by the Applicant himself through appropriate class of licensed contractor by paying 10% of the estimate as supervision charges to the Licensee.”

51Copy pinpoint51. The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties. Parking

52Copy pinpoint52. The appellants seek a refund of an amount of Rs. 2.25 lacs collected from each buyer towards car parking. The submission is that under Section 3(f) of the Karnataka Apartment Ownership Act 197224 , common areas and facilities include parking areas. According to the appellants, the flat buyers had already paid for the super area in terms of G clause 1.6 of ABA including common areas and facilities which would be deemed to include car parking under the KAO Act. The relevant portion of clause 1.6 is extracted below: “1.6. The Allottee agrees that the Total price of the said Apartment is calculated on the basis of its Super Area only (as indicated in 24 H “KAO Act”

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HOMES PVT. LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]

clause 1.1.) except the parking space, additional car parking space which are based on fixed valuation….”(emphasis supplied)

53Copy pinpoint53. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement.

54Copy pinpoint54. The decision of this Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited25 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. C Manmohan Lowe26. The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.

55Copy pinpoint55. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions: (i) Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the date of the offer of possession after the receipt of the occupation certificate;

25 (2010) 9 SCC 536 26 (2014) 12 SCC 231 H

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A (ii) The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and (iii) The amounts due and payable in terms of directions (i) and B (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment.

56Copy pinpoint56. The civil appeals are accordingly allowed in the above terms.

57Copy pinpoint57. Pending application(s), if any, shall stand disposed of. C

Divya Pandey Appeals partly allowed.