Punjab and Haryana High Court recently explained certain questions of law pertaining to RERA while pronouncing two judgments.
Questions of Law
1. Whether there is a clash between the powers between the powers of the Real Estate Regularity Authority and the Adjudicating officer?
2. Whether one can seek remedies under the RERA and Consumer Protection Act simultaneously?
3. Can the authority be headed by a single member?
In the case of Experion Developers Pvt. Ltd. v. State of Haryana and Ors., the High Court read Section 71 with Sections 12, 14, 18, 19 of the RERA and in the light of these Sections the Court ruled that the AO could adjudge the rates of compensation and interest payable upon a default by a promoter of a housing project.
Section 71 states the powers of AO’s authority, adjudging the compensation and interest. Only the promoter could be proceeded when the AO was approached, the Court stressed. If the homebuyer wished for further remedies, he would have to approach the Authority, who was bestowed with a wider range of powers under the legislation under Section 31,34, Sections 35, 36 and 37.
The Act gave the Authority the trappings of a Court, and authorized to issue directions and interim orders, the Court stated. Thus marking a distinguishing line between the powers of the AO and the Authority the Court stated that in the case of compensation alone the person should approach the AO.
The AO will then determine as to whether there was an agreement between the contractor and the homebuyer before adjudging the compensation. Thus the question in respect to ascertaining the contract between the homebuyer and real estate agent has to be assessed by the authority first and then the question of compensation is to be dealt by the AO, the bench laid down.
The second question of law in respect to seeking remedies under any other provision of law simultaneously while seeking under RERA, the Court mentioned Section 88 of the RERA that states that remedies under RERA and the Consumer Protection Act could be sought simultaneously. Section 88 vividly states that its provisions would be in addition to, and not in derogation of, the provisions of other law in force. However, the Court made an observation on the aspect of remedies being pursued before the AO.
The Court stated that if the allottee withdrew his complaint before the Consumer Forum and presented before the AO, he would only entitled to compensation as opposed to obtaining a refund /reliefs.
The last question of law pertaining to heading of authority by a single member, the Court ruled that there was no provision in the Real Estate (Regulation and Development) Act, which vested either the Authority or the Appellate Tribunal to function with a single member while exercising quasi- judicial or adjudicatory functions.
Thus quoting Sections 20(2), 21, and 29, the Court ruled that adjudicatory power of the authority could not be transferred to a single member without it being expressly mentioned in the Act.
Case Details
Before: Punjab and Haryana High Court
Case Title: Experion Developers Pvt. Ltd. v. State of Haryana and Ors.
Quorum: Hon’ble Mr. Justices Dr S Muralidhar and Avneesh Jhingan
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