BEFORE THE COMPETITION COMMISSION OF INDIA
CASE NO.19/2010 Dated : 3rd January, 2013 IN THE MATTER OF
:
BELAIRE
OWNERS’ASSOCIATION .…. INFORMANT
VS.
DLF
LTD. …. OPPOSITE PARTY-1
HARYANA
URBAN DEVELOPMENT …. OPPOSITE PARTY-2
AUTHORITY
DEPARTMENT
OF TOWN & COUNTRY …. OPPOSITE PARTY-3
PLANNING,
STATE OF HARYANA
Through:-
Shri Vaibhav Gaggar, advocate for informant and
Shri
Ravinder Narain, advocate for opposite party no.1
Supplementary
Order u/s 27 of the Competition Act, 2002
The
Commission vide its order dated 12th August, 2011(the order) in above case had
held DLF Ltd. as a dominant enterprise in the geographic area of Gurgaon in the
relevant market. The Commission found that DLF Ltd. had abused its dominant
position and violated the provisions of Section 4 of the Competition Act,
2002(the Act) as DLF had made the flat owners i.e. members of the Informant
association to sign a highly abusive apartment buyers agreement. In para 12.90
of its order, the Commission had noted a number of clauses of the agreement as
examples of abusive nature. The Commission observed in para 12.91 that DLF Ltd.
had made it clear to the allottees that no alterations/modifications were to be
made in the said agreement by the allottees. The Commission in para 12.95 had observed
regarding commencement of project without sanction/approval, increase in
number2 of floors midway, increase of Floor Area Ratio(FAR) and density per
acre(DPA), inordinate delay in completion and possession, forfeiture of
amounts, etc. The Commission found that the clauses of the agreement were
biased in favour of DLF Ltd. In para 12.101, the Commission observed that
certain clauses in the agreement gave DLF a sole discretion in respect of
making changes in zoning plans, usage pattern, super area, carpet area and for
alteration of structure and even a case of change of location of apartment and
if a refund became due, no interest was payable by the builder. No rights had
been given to buyers for raising objections. Even if the buyers had paid full amount,
the builder could create mortgage on the property of the buyers for raising
finance for its own purpose. DLF Ltd. inserted such clauses which made exit
next to impossible for buyers. In case of delay by the builder, DLF Ltd. was to
pay compensation of Rs. 5 per sq. feet per month equivalent to about 1% per
annum interest, while in case of delay in payment by the buyer, the interest
charged was 15% per annum for the first 90 days and 18% thereafter. The
Commission came to conclusion that the conduct of DLF Ltd. was unfair in terms
of section 4 and was being carried out by it because of its being a dominant
enterprise and amounted to abuse of dominance
2.
Having arrived at this conclusion, the Commission had considered as to what
should be the appropriate order in this case. The Commission considered the
provisions of section 27 of the Act which empowered the Commission to pass an
appropriate order as mentioned in section 27 (a) to 27 (g). The Commission
considered that since the findings of the DG and the Commission showed a
violation of section 4 of the Act by DLF, thus those provisions of section 27
could be applied which pertained to abuse of dominance. As such, the Commission
concluded that it could pass orders under all or any of the provisions contained
in section 27(a), 27 (b), 27 (e) and 27(g). The Commission was of the opinion
that section 27(a), 27 (e) and 27(g) related to contravention of both sections
3 & 4 while section 27(d) related to contravention of section 3. Having
regard to this aspect, the Commission considered it appropriate to pass an
order imposing penalty on DLF and give directions under section 27(a) to DLF.
The Commission therefore gave following directions:-
(i)
to cease and desist from formulating and imposing such unfair conditions in its
agreement with buyers in Gurgaon.3 (ii) to suitably modify unfair conditions
imposed on its buyers with regard to above within three months of the date of
receipt of the order.
The
Commission left it to DLF to suitably modify unfair conditions imposed on its
buyers expecting that the modified agreement shall be finalized by DLF in
consultation with buyers keeping in view of the findings and observations of
the Commission. The exact terms and conditions of the agreement were not
formulated as it involved specific contract with each buyer in respect of
service/goods to be provided by the DLF and freedom was given by Commission to
the parties to enter into mutually agreed contract. It was expected that in
each such agreement DLF shall properly define the product/service as it was
having exact spaces/carpet areas/common areas/dimensions etc. applicable in
respect of that buyer and it shall clearly state all requisite clearances which
it had obtained at the time of entering agreement. It was also expected that it
shall state the cost of the product/service to the buyers with no hidden and
indirect charges and it shall also clearly lay down the delivery schedule stage
wise. It was also expected that one sided clauses shall be suitably modified so
as to remove the abuse of dominance.
3.
Against 12.8.2011 decision of the Commission, DLF preferred an appeal before
Competition Appellate Tribunal (COMPAT). COMPAT vide its order dated 29/03/2012
remitted the matter, along with the draft modified terms & conditions
submitted by the parties, to the Commission directing the Commission to pass an
order under section 27(d) specifying the extent and manner in which the terms
and conditions of the Agreement need to be modified. Further, COMPAT in its
order dated 21.05.2012 observed that in order to carry out suitable
modifications in terms and conditions of the Agreement, it would be imperative
to first determine the manner and extent of such modifications in terms of the
order dated 12.08.2011 and only then such modifications could actually be
carried out. It was further observed that the direction to ‘suitably’ modify
the unfair terms and conditions was interminably linked to the question whether
the terms and conditions were indeed unfair and, therefore, need to be
‘suitably’ modified. The question of correctness of the findings of the
Commission will, therefore, depend on the whole gamut of the conclusions
arrived at by the Commission; the foundation and the basis on which the same
have been arrived at, as well as the manner and extent of the modifications
which they have so directed which need to be carried out. 4 4. The Counsel for
informant argued that the Commission should consider the whole Agreement for
modification in view of its findings in the final order dated 12/08/2011. He
contended that from the observations of the Commission it was clear that
abusive conditions of the Agreement mentioned in the final order dated
12/08/2011 were some of the examples only. Thus, the entire agreement was
required to be examined and appropriate amendments/modifications were required
to be suggested by the Commission in terms of directions of COMPAT. On the
other hand, the Counsel for OP-1 argued that conclusions arrived at by the
Commission in the final order dated 12/08/2011 were enumerated in paragraph
12.90 under sub-paragraphs (i) to (xvi) (in the case of Belaire project). The
so-called abusive clauses were thus limited and the Commission was expected to
suggest modifications to only those terms & conditions of the Agreement
which were specifically declared to be abusive and in contravention of the
provisions of section 4(2) (a) (i) of the Act. Demand of informant for
suggesting modifications to other terms and conditions by the Commission was
not valid as there were no specific findings qua other clauses of agreement in
the final order dated 12.08.2011 of the Commission. He even argued that since
the project stands completed and possession given, no modification in the
agreement was at all necessary.
5.
Before considering the modifications to be made in the clauses of the
agreement, it is necessary to know relevant provisions of applicable laws for
the development of a housing project in Gurgaon, Haryana and the place and role
of a builder and buyer under the law. It is quite necessary to have a clear
view of the laws applicable to both the parties and their respective rights in
order to give directions in respect of preventing/stopping abuse of dominance
and to indicate the extent and manner of modification of an agreement governing
their inter se rights and obligations.
6.
The main Act which governs development of group housing colonies by a coloniser
in Haryana is the Haryana Development and Regulation of Urban Areas Act, 1975
(Act of 1975) coupled with the Haryana Development and Regulation of Urban Area
Rules, 1976( Rules of 1976). Under section 3 of the Act of 1975, an owner of
land desirous of converting it into a colony /group housing, can make an
application to the Director, Town & Country Planning, Haryana(the Director)
for grant of a licence to develop it as such. All the provisions of the Act of
1975 and the 5 Rules of 1976 are, therefore, applicable, whenever a group
housing colony like the one which is subject matter of this case is sought to
be developed in the State of Haryana. Apart from this, after the development of
group housing, all the residential units are to be transferred to the allottees
under the Haryana Apartment Ownership Act, 1983 (Act of 1983) and thus this Act
and Rules thereunder are also equally applicable to the builders as well as to
the apartment owners. Since the Group Housing Colony has to be a residential
colony within an urban area, the Haryana Urban Development Authority (Erection
of Buildings) Regulations, 1979 (Regulations of 1979) regarding FAR and other
provisions like providing car parking space etc. are also mandatory.
7.
A perusal of the applicable laws on development of group housing colonies in
the State of Haryana would show that following are mandatory requirements:-
(i)
Maximum permissible coverage is 33.33% of the total site on ground and
subsequent floors or 35% of the site on ground floor and 30% on subsequent
floors (Compendium of Haryana Building Bylaws & Urban Development
Regulations by V.K. Puri P.1.81 to 1.87).
(ii)
Maximum permissible FAR (as applicable in 2009) was 175% of the site area on
which Group Housing Complex is developed (Compendium of Haryana Building Bylaws
& Urban Development Regulations by V.K. Puri P.1.81 to 1.87).
(iii)
1.5 equivalent car space (ECS) for each dwelling unit had to be provided by the
builders and a minimum of 75% of this should be in the form of covered parking
(Compendium of Haryana Building Bylaws & Urban Development Regulations by
V.K. Puri P.1.81 to 1.87)..
(iv)
Section 3 (5) of the Act of 1975 provides that a colony may comprise of one or
more licences with contiguous land pockets. Therefore, each licence has to be
in accordance with the bye-laws and rules regarding FAR and parking as well as
open areas, external development and internal development.
(v)
Under Rule 4 of Rules of 1976, in the lay out plan of a residential colony of
plots, the land reserved for roads, open spaces, schools/public and community
buildings and other common use area cannot be less than 45% of 6 the gross area
of the land under the colony. Director, Town and Country Planning, Haryana
Government has discretion to reduce this percentage to 35% if in his opinion
the planning requirement and size of the colony justify the same. However, he
has to record reasons for reducing this percentage.
(vi)
The coloniser/ builder only acts as a developer. Once he has developed a Group
Housing Complex and the apartment owners have paid the cost of External
Development Charges (EDC), price of apartment and other charges, the builder is
not supposed to have any right or concern left in the property. This is clear
from the fact that under Rule 11 of the Rules of 1976, the builder after
development of roads, drainage, sewage, water supply and electricity inside the
colony has to maintain it only for a period of five years or till the
association of plot owners takes the responsibility and release the builder of
the maintenance responsibility. Similarly, the builder is supposed to pay EDC
proportionate to the area of the colony/dwelling group housing unit to the
Govt. for development of main lines of road, drainage, sewage, water and
electricity. A builder is to give undertaking to construct, at his own cost or
get constructed by any institution or individual, schools, hospitals, community
centres and community buildings on the land set apart for this purpose or
undertake to transfer to the Govt. or the local authority, free of cost, at any
time, such land earmarked for constructing community buildings.(in case they
are not constructed) and the Govt. would be at liberty to transfer such land to
any persons or institution.
(vii)
It is specifically provided under the Act and the Rules that the internal
development of the colony shall include markets, road and paved foot paths and
properly turfed open spaces with plantation of trees, street light, water
supply, sewers and drains, both for storm and sullagewater with provision for
their treatment and disposal (Rule 5 of Rules of 1976).
(viii)
Under Section 7 of the Act of 1975, there is a prohibition on the
coloniser/builder as well as on property dealer from issuing any advertisement
in respect of the colony regarding transfer of plots or apartments without
obtaining licence under section 3. There is also prohibition on receiving any amount
in respect thereafter or to erect any building or re-erect building in 7
respect of which a licence under section 3 has not been granted. It is further
provided in section 5 that 30% of the amount realised from the plot owners from
time to time shall be deposited by the builder in a separate account to be
maintained in a scheduled bank and this amount shall be utilised only for
meeting the cost of internal development of the colony. The remaining 70% of
the amount is to be retained by the coloniser to meet the cost of land and
development works. This provision requires the coloniser to maintain account of
the amount kept in the scheduled bank. It is only after the internal
development works have been completed to the satisfaction of Director, the rest/balance
amount can be withdrawn by the coloniser.
A
coloniser intending to set up group housing colony has to enter into an
agreement with the Director, Town and Country Planning, Haryana in Form LC
IV(a) which mandates that adequate health, recreational and cultural amenities
in accordance with norms and standards provided in respective development plan
of the area are to be provided by the coloniser. The coloniser has to ensure
that dwelling unit is sold or leased by him in accordance with the provisions
of Haryana Apartment Ownership Act, 1983 with common areas and facilities.
Common areas of the plot of land on which Group Housing Colony is developed, in
fact, belong to and are meant for the common use of apartment owners and once
the apartments are sold, all the common areas and facilities vest jointly in
apartment owners and are to be maintained by apartment owners by forming an
association in terms of the laws laid down by Haryana Govt.
(ix)
The coloniser has to sign an agreement with the Haryana Govt. that he shall
derive maximum net profit only of 15% of the total project cost of the
development of colony after making provisions of statutory taxes. In case the
net profit exceeds 15% after completion of the project, the surplus amount
either has to be deposited with the State Govt. treasury within two months of
the completion or he has to spend this money on further amenities /facilities
in the colony for the benefit of residents.
Further,
the Act of 1983 was enacted to provide for ownership of individual apartments
and make ownership rights as transferable for the promotion of group 8
housing in the State of Haryana. As per Section
5 of the Act, owner of every apartment, as defined in the Act, is required to
execute and get registered a conveyance deed. ‘Apartment’ in the Act of 1983
has been defined in section 2(a) as a part of a property intended for any type
of independent use, as may be prescribed, with a direct exit to a public
street, road or highway or to a common area leading to such street, road or
highway. ‘Apartment owner’ has been defined as the person or persons owning an
apartment and having undivided interest in the common areas and facilities in
the percentage specified and established in the declaration.
7.1
Under the Act of 1983, ‘common areas and facilities’, unless otherwise provided
in the declaration or lawful amendments thereto, means:-
i) the land on which the building is located;
ii) the foundations, columns, girders, beams,
supports, main walls, roofs, halls, corridors lobbies, stairs, stair ways, fire
escapes and entrances and exits of the building;
iii) the basements, cellars, yards, gardens,
parking area and storage spaces;
iv) the premises for the lodging of janitors or
persons employed for management of the property;
v) installation of central services such as
power, light, gas, hot and cold water, heating, refrigeration, air conditioning
and incinerating;
vi) the elevators, tanks, pumps, motors, fans,
compressors, ducts and in general all apparatus and installations existing for
common use;
vii) such community and commercial facilities as
may be provided for in the declaration; and
viii)
all other parts of the property necessary or convenient to its existing
maintenance and safety or normally in common use.
7.2
Section 18 of Act of 1983 regarding ‘separate assessment’ mentions that
notwithstanding anything to the contrary contained in any law relating to local
authorities, each apartment and its percentage of undivided interest in the
common area and facilities appurtenant to such apartment(being an apartment
subject to the provisions of the Act) shall be deemed to be separate for the
purposes of 9 assessment to tax on lands and buildings liable under such law
and shall be assessed and taxed accordingly. The building, the property or any
of the common areas and facilities shall not be deemed to be separate property
for the purpose of the levy of such tax.
8.
Thus the development model of the colonies /group housing societies can be
discerned from above-mentioned Acts, Rules, Regulations and Norms and annexures
to the Rules in the form of bilateral agreement to be executed between
colonizer and Govt., and the control to be exercised under the Act by the
Director.
9.
Judgment of Supreme Court in ‘Nihal Chand Lallu Chand Pvt. Ltd. vs. Pancholi
Cooperative Housing (AIR 2010 SC 3607)’ also has bearing. In the judgment, it
was held that garage is not an independent unit by itself, but is an
appurtenant or attachment to flat within the meaning of Section 2(a-1) of Maharashtra
Ownership Flats(Regulations of Promotion of Construction, Sale, Management and
Transfer) Act, 1963 (MOFA). Open to sky-parking area or stilted portion usable
as parking space was not garage within the meaning of Section 2(a-1) of the Act
and not sellable independently as flat or along with flat. However, promoter
was entitled to charge price for common areas and facilities from each flat
purchaser in proportion to carpet area of flat. Further, the Act mandated the
promoter to describe common areas and facilities in advertisement as well as
agreement with flat purchaser and indicate price of flat including
proportionate price of common areas and facilities. Stilt parking space could
not cease to be a part of common areas and facilities merely because promoter
had not described the same as such in advertisement and agreement with flat
purchaser. Promoter had no right to sell any portion of such building which was
not ‘flat’ within the meaning of section 2(a-1) of the Act. He had no right to
sell stilt parking spaces as these were neither flat nor apartments or
attachment to flat. Hon’ble Supreme Court also observed in this Judgment that
the rights arising from the Agreement signed under the MOFA between the
promoter and the flat purchasers cannot be diluted by any contract or
undertaking to the contrary. The undertaking contrary to Development Controlled
Regulations for Greater Bombay 1991(DCR) will not be binding either on the flat
purchasers or the Society. It is to be noted that provisions of MOFA 1963 are
similar to Haryana Act of 1983.10 10. In the light of the above judgment of the
Supreme Court, applicable Acts and Rules and development model of the Group
Housing societies envisaged under law, the agreement executed between DLF Ltd.
and members of the informant Belaire Owners’ Association is to be considered
and looked upon by the Commission for the purpose of suggesting modifications
so that there are no abusive clauses. Several clauses of the agreement are
interwoven and have impact on other clauses. Modification of one would
necessitate modification of other. The Commission therefore had to consider
modifications wherever it found clause of the agreement was abusive.
11.
The Commission thus considered all the clauses of the Buyer’s Agreement. The
reasons for proposed modification are given hereunder. The modifications
suggested have been given in tabular form at the end opposite the existing
clause.
12.
The recitals in the agreement form two parts (i) Companies’ representations as
(A) to (G) and (ii) Allottees’ representations as (I) to (M). In recitals, the
company had stated that it was having an approved lay out plan of Phase V in
DLF City and was presently having an area of 527.9435 acres under its control
and it was likely to have more areas concerning this Phase V and the lay out
plan of Phase V shall accordingly get changed as and when the new areas
acquired by it and approved by Director, Town and Country Planning, Haryana.
The allottees shall have no objection and give their consent to the company for
the purpose of making necessary changes in the lay out plan of Phase V as and
when new areas are included in the lay out plan as annexed to the agreement and
the same shall stand automatically changed and the new lay out plan as drawn by
the company and approved by the Haryana Govt. shall form part of the agreement.
Admittedly, the rights of the allottees have been restricted to Belaire Group
Housing Complex only. The reference to phase V Belaire agreement in unnecessary
and may have potential of being abused. Recital ‘D’ made it clear that the
agreement was confined and limited in its scope only to this Group Housing
Complex (Belaire) to be constructed by the company on the portion of land
delineated in Annexure I and IA of the agreement. However, neither Annexure I
nor I A gives the area of land of Belaire Complex, nor the area of 6.67 acres
given in agreement is in conformity of FAR norms.11Every Group Housing
Scheme/Complex has to comply with all Rules and Regulations in respect of Group
Housing Complex. These Rules and Regulations are mandatorily required to be
followed by the coloniser/ builder. The recitals have been framed in such a
manner as if the company was not bound by the Rules and Regulations concerning
Belaire Group Housing Complex and only allottee was bound by the Acts, Rules
and Regulations. The rights vested in the allottees cannot be taken away by DLF
unilaterally as mentioned in the recitals of the agreement. The Commission
consider that the recitals be modified as given in the annexed modification.
The reference to phase V be limited only for information purpose. The layout
plans etc. should refer to Belaire Project. The recitals should specify title
of company over project level and obtaining necessary licences from competent authorities
and representations of parties to abide by relevant laws.
13.
The counsel for the company had vehemently argued that the rights of the
allottee are limited to only flat/apartment and the proportionate right in the
land at the footprint of the tower in which the apartment is situated. The
allottee had no right of ownership over the land and every inch of the place
outside the apartment belonged to the company and the right of the allottee was
limited only to use of open areas as may be permitted by the company on payment
of maintenance charges. This stand of the company is contrary to law and highly
abusive. The apartment owners of a complex jointly become owner of the entire
land of which FAR is utilised for construction of the complex. The land area
and common facilities belong exclusively to the apartment owners as per the Law
and Rules discussed above and no right of the company is left in the land area.
It is also clear from explanation given to clause 1.1 and Clause 2 of the
existing agreement wherein the company has made it categorically clear to the
apartment owners that apart from the cost which the company was charging on per
sq. feet of super area, the allottee was liable to pay additional price
proportionate to the share in the taxes which are payable by the company or its
contractor by way of value added tax, sales taxes (Central and State), works
contract, service tax, education cess or any other taxes by whatever name
called in connection with construction of the complex and the property of the
complex. It is clear from this that all taxes including the tax in respect of
the land area of which FAR is used and apartments are constructed are to be
borne by the allottees jointly in proportion to the super area purchased by
them. The company is12 not to bear burden of any State Tax or Central Tax in
respect of the GH complex. The company cannot claim ownership of even an inch
of the open area of the land of the complex. The entire land area of the
complex falls under joint ownership of the allottees. The ownership is
indivisible and the allottees have a right to manage the same by forming an
association and can tell the company to move out of the area with lock stock
and barrel. Thus, the company’s argument that it retains ownership rights over
the open area even after sale of apartments is not tenable and all such clauses
in the agreement put by the company giving it a claim/ right over the open
areas/ common areas, etc. amounted to abuse of dominance and this abuse can be
removed by modifying the abusive clause and providing in the agreement about
the obligation of the company to abide by the Laws, Rules and Regulations as
applicable to a Group Housing Complex. It would be worthwhile to mention that
for making a Group Housing Complex, the maximum FAR applicable in 2009 was
175%. The restriction on number of storeys /floors was, however, removed. The
company on removal of this restriction raised the height of the building from
19 floors to 29 floors using the same footprint and same Belaire area. However,
since the FAR was only 175%, the land area/open area for the Complex would have
to be commensurate with total super area of all the apartments in all 29
floors. As per the calculations made by the informant, which have not been
disputed by the company (and the company has not come up with its own
calculations) the total land area on which the Bellaire Complex of 29 floors
could be constructed as per FAR was 20.885 acres.
14.
The allottees of Belaire Complex jointly would have, therefore, undivided
ownership rights over land area in ratio of FAR inclusive of the footprint of
the building and not alone on the footprint of the building as is asserted by
the company in the agreement. The abuse in different clauses of the agreement
could only be removed by specifying the land area of GH complex Belaire as per
FAR ratio. However, if the company has already deprived the allottees of land
area, by abusing its dominance and curtailed the land area, the allottees’
right to claim compensation as per law shall be there.
Similarly
open parking and parking under stilt are part of common areas and are not
sellable separately independently or along with flat. Open parking do not cease
to be a part of common areas and facilities merely because DLF had not
described the same as such in advertisement and agreement with flat purchaser.
13 Promoter had no right to sell any portion of Belaire GH Complex which was
not a flat or apartment. Hon’ble Supreme Court observed that rights arising
from relevant laws cannot be diluted by any contract or undertaking to the
contrary. Accordingly, the relevant clauses of the agreement need modification
and suggested modifications are given in clause 1.1 of the table given below.
15.
In the order, the Commission had observed that when an allottee does not get
preferential location, he only gets the refund/adjustment of amount at the time
of last instalment without any interest. The preferential location charges were
imposed and charged by the company @ of Rs.300 per sq. feet of the super area.
The Commission considers that in case the allottee does not get apartment with
preferential location, the amount taken by the company for preferential
location should be returned to the allottee with a reasonable rate of interest
from the date of the payment of the amount till the date amount is returned to
the allottee. The rate of interest should be commensurate with rate of interest
being charged by the company from allottee on delayed payments. If the amount
is adjusted against the balance payment payable by the allottee, it should be
adjusted alongwith interest. The suggested modification is given in clause 1.5.
16.
In the order, the Commission observed that DLF enjoyed unilateral right to
increase or decrease super area at sole discretion without consulting allottees
who, nevertheless, were bound to pay additional amount or accept the reduction
in area. When the construction of a multi storey building is envisaged, the
plans are drawn on drawing board. Most of the group Housing Complexes are sold
on the basis of the plans drawn on drawing board. Super area and the actual
apartment area are two different concepts. The apartment area is the area which
is exclusively enjoyed by the apartment owner. It includes carpet area plus
area under the walls of the apartment, while super area is the sum of apartment
area and common areas which the allottee enjoys along with other apartment
owners. This area is inclusive of lift area, staircase area and other entrance
areas, etc. Most of the times, the actual building and the drawing board plans
match with each other and the building is constructed in accordance with the
construction plan as approved by authorities in advance. However, there may be
instances where at the time of actual construction, certain minor changes are
required to be made in some of the drawing board plans and the building is
constructed slightly different from the drawing board plan but it,14 more or
less, conforms to the drawing board plan. In such a case, there may be either
minor (say + 2%) increase or decrease in the super area as well as the carpet
area of each apartment. However, the company if substantially changes the
lay-out plan resulting, in more than 2% increase or decrease in super area, the
allottees’ consent should be obtained for such changes in the lay-out plans.
Since the price paid by the allottee is per sq. ft. of super area, the price of
the apartment would increase or decrease after the actual building is
constructed. In order to lay a claim on the basis of increase in super area,
the company is supposed to give information to the allottee about the
difference in the initial building plan and the actually-constructed building
plan on the basis of which the new super area is calculated. The actual plan
should be the one submitted to the authorities for completion certificate and
on the basis of which occupancy certificate is granted. The calculations of
increased area should be sent to the allottee, so that the allottee knows and
can verify on ground as to how his super area has increased. A mere letter from
the company that the super area has increased is not sufficient to claim any
amount from the allottee. Thus, whenever a claim on the basis of increase in
super area is made, the company is bound to give the relevant information as to
how the super area stands increased. The clauses in this respect therefore need
to be modified. Accordingly modified clause 1.6 is given in the table. Clause
9.2 also gets covered by modified clause 1.6.
17.
In the order, the Commission had found that the proportion of land on which
apartment is situated and over which the allottee would have ownership right
was to be decided unilaterally at the discretion of the company(DLF Ltd.). In
clause 1.7 of the existing agreement, company has stated that it may, at its
own discretion for the purpose of complying with the Haryana Apartments
Ownership Act, 1983 or other applicable Laws, substitute the method of
calculating the proportionate share in the ownership of the land beneath the
building/common areas or facilities. The company in so many words stated that
the allottee will only have proportionate ownership rights in the land
underneath the building i.e. the land which is the footprint of the building in
which the said apartment is situated. Similarly, company has unlawfully
provided for itself right to further go up in air by increasing the number of
floors and reserving to itself terrace rights. This is totally contrary to the
law and imposition of this condition on the allottee by DLF is because of its
dominance and amounts to 15 gross abuse. All relevant clauses depriving
allottee of his lawful rights need to be modified to bring them in conformity
with Law, Rules and Regulations so as to remove the abuse vis-a-vis the
allottee. Modified clauses are given in the table below.
18.
In the order, the Commission observed that the covenant in clause 1.7(viii) of
the agreement, giving right to DLF of having full and absolute rights in the
community buildings/sites/recreational and sporting activities sites including
maintenance of those, was abusive.
As
per applicable Laws, Rules and Regulations discussed above, site for community
buildings are compulsorily required to be set apart by the coloniser and these
sites, if not constructed either at the cost of coloniser or if not handed over
and constructed by others, were to be given to the Govt. of Haryana, free of
cost. This simply shows that the cost of these sites is recovered from the
Allottees and clause 1.7(viii) makes a false representation that no costs were
recovered from allottees. Moreover, in order to claim ownership rights over any
part of the land in Belaire Complex, the company has to show that it was owning
a part of the constructed super area which was not allotted to the allottees
/apartment owners and not charged from allottees. In such a case, the company
would be the owner of that facility and the common area proportionate to its
super area jointly with other apartment owners. As per law & relevant
rules, the company is bound to provide for club, schools, shopping complex,
children park and open green areas. As per the building bye-laws and the Acts
of 1975 and 1983, the open areas and common facilities are to be maintained by
the Apartment Owners Association. The company’s rights in club, etc. can be
there only if the company has filed accounts with the administrator showing
that it had not recovered the cost of club etc. by charging the cost of common
facilities from the allottees and common facilities were owned by it. Para one
of annexure II to the agreement reads as under:-
“Super
area for the purpose of calculating the sale 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 apartment buildings earmarked for use of all
16apartment allottees in the Belaire which include the club with swimming pool,
toilets/change room, multipurpose hall, gymnasium and restaurant, etc.”
Part
B of annexure IV reads as under:-
|
List
of general common areas and facilities located in the basement for all
apartment allottees in the Belaire included in computation of super area of
the said apartment:- Sl.no.
|
Particulars
|
Remarks
|
|
1.
|
DG
Room/DG sets
|
May
be located under any building or any other suitable location in the
Belaire/zone-8, DLF City, Phase V
|
|
2.
|
Underground
domestic and fire water tanks and pump room and pumps with accessories
|
|
3.
|
Electric
sub-station/transformers/electrical panels
|
|
4.
|
Fan
rooms
|
|
5.
|
Laundromat
|
|
6.
|
Maintenance
stores and circulation areas
|
|
7.
|
Sewerage
treatment plant
|
|
8.
|
Air-conditioning
plant room and equipments
|
|
|
|
|
