Finally the latest amended rules of Haryana Real Estate Regulatory Authority (HRERA) is out. The new rules gives the jurisdiction to RERA Authority (member as retired IAS) from Adjudicating Officer (member as Retired Judge, AO) to decide matters pertaining to refund of investment in case of withdrawal from the project. From its Inception only Haryana RERA Authority was on the front foot in solving real estate disputes of the region. Just see the number of cases previously decided.
But soon the controversy erupted for the jurisdiction of RERA Authority ( Both Panchkula & Gurugram) vis-à-vis Adjudicating officer (AO) for grant of Refund in Sameer Mahawar’s Case decided on 02.05.2019 by which Haryana Real Estate Appellate Tribunal (HREAT) at Chandigarh held that it is the latter only who is Adjudicating officer (AO) who can grant the refund not RERA Panchkula or Gurugram Authority.
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Now with the Latest Amendment of Haryana Government by Tower & Country Planning Department (Notification) dated 12th September, 2019 vide no. Misc -862/1/83/2019/ 1TCP, the RERA Authority both Punchkula & Gurugram has been Conferred with the powers to grant refund.
The Specific provision in this regards is Rule 28 Clause (2) (k) which reads as below:
(K) The Authority may provide relief in such from as deemed appropriate including return of the amount to the allottee received by the promoter along with interest at the rate as prescribed in rule 15.
The power to amend rules has been conferred under sec 84(1) read with subsection (2) of the Real Estate (Regulation & Development) Act, 2016 (Central Act 16 of 2016) and in light of which Haryana Real Estate (Regulation & Development) Rules, 2017 stands Amended on 12.09.2019 which is the date of their publication in the official gazette.
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Now the sub section (2) of section 84 grants following powers to authority:
- The rate of interest payable under section 12.
(i) The rate of interest payable under clause (b) of subsection (1) of section 18.
(j) The rate of interest payable under sub section (4) of section 19.
(k) The rate of interest payable under sub-section (7) of section 19.
Whereas the power to adjudge compensation under section 12, 14, 18 & 19 comes under the exclusive domain of adjudicating officer.
Thus Authority by way of section 84(1) & 84(2) doesn’t have any power to amend rules /procedure in regards to section 14 which is compensation for any change of plans or non-adherence to sanctioned plans and project specifications by the promoter.
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Now Rule 28 provides filing of complaint before Authority (CRA) – Complaint before Rera Authority.
And Rule 29 talks of filing complaint before Adjudicating officer (AO). Complaint (CAO) – Complaint before Adjudicating officer.
Now, again Rule 28, clause (1) (e) has been amended and its proposes that the complaint should first be submitted to the Authority.
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Rule 28 Clause (e) reads- Where the allottee is the aggrieved person and the promoter has violated the provisions of the Act or the rules or the regulations made thereunder as established on inquiry by the Authority under section 35 and in the complaint compensation has been sought by the allottee, the complaint for adjudging quantum of compensation as contained in sections 12, 14, 18 and 19, shall be referred to the adjudicating officer by the Authority and the adjudicating officer shall conduct an inquiry to adjudge the quantum of compensation as per the provisions mentioned in sub section (3) of section 71 by taking into consideration the factors mentioned in section 72, in the manner as prescribed in rule 29.
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Further clause (m) also talks of complaint being moved to the authority first for inquiry. Let us read it:
(m) If the complaint in form ‘CAO’ filed before the adjudicating officer for adjudging quantum of compensation, the complaint shall be admissible from the stage of concluding inquiry by the
Authority that respondent being promoter has violated or contravened provisions of the Act or the rules or regulations made thereunder warranting liability of the promoter to pay compensation to the allottee under the provisions of the Act or the rules or regulations made thereunder. The Authority may refer the matter to the adjudicating officer for adjudging the
quantum of compensation payable to the complainant allottee, and direct both the parties to appear before the adjudicating officer on the appointed day. The quantum of compensation
payable to the complainant may be expressed by the adjudicating officer in the form of lump sum amount or in the form of percentage of interest on the amount paid by the complainant to
the respondent promoter (compensation expressed in terms of interest i.e. compensatory interest)
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In my view again this gives rise to two complaints. From M (CRA) & Form N (CAO) which both the appellate RERA Authorities (Punjab & Haryana) have condemned.
Let us have the findings of Punjab RERA Appellate Tribunal in Sandeep Mann versus RERA Punjab & Anr, Appeal no. 53 of 2018:
1 All violations and causes of action that gives rise to multiple reliefs shall be placed before one forum for adjudication.
2 Where the Act and or the Rules identify a particular forum as empowered to adjudicate a particular violation or a cause of action, the forum so named shall alone be empowered to decide the matter.
3 A violation claiming relief of compensation can only be adjudicated by the Adjudicating Officer exercising power under Section 71 of the Act and Rule 37 of the Rules.
4 Where the violation alleged leads to a relief of compensation or if compensation is a part of multiple reliefs like return of investment with interest and compensation or refund with interest including compensation, the complaint shall be placed before the Adjudicating Officer exercising power under Section 31 and 71(1) of the Act read with Rule 37 in form N.
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5 All other matters whatever be the nature of the voilation/cause of action and the reliefs flowing therefrom shall be placed before the Authority, like interest under the proviso to Section 18 and 19(7) of the Act.
6 All pending complaints/applications shall be forwarded by the Authority or the Adjudicating Officer to the appropriate forum as indicated above.
7 The parties shall be at liberty to amend their applications/complaints if the need so arises.
8 This order shall not apply to any matter that has attained finality.
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Punjab RERA Appellate Tribunal held that Adjudicating Officer can decide both reliefs of compensation and refund and thus there is no bar by the way of notification or circular that Powers of Adjudicating Officer is only limited to compensation only.
HRERA Appellate Authority Held that in Sameer Mahawar vs MG Housing Pvt Ltd:
1) That violations and causes of actions arising out of the same bundle of facts/rights giving rise to the multiple reliefs shall be placed before one and the same forum for adjudication in order to avoid the conflicting findings.
2) The complaints for the grant of relief of compensation can only be adjudicated by the adjudicating officer as per the provisions of section 71 of the Act and rule 29 of the rules.
3) Similarly, if compensation is provided as a part of the multiple reliefs along with refund/return of investment with interest flowing from the same violation/violations and causes of action, the complaints have to be placed before the adjudicating officer exercising the powers under Sections 31, 71(1) read with rule 29 of the Rules as only the adjudicating officer is competent to deal with the relief of compensation.
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The complaints filed by the appellants/allottees stand transferred to the adjudicating officer of the respective authorities for adjudication in accordance with law. The adjudicating officer will allow the appellant/allottee to amend their complaint in order to bring it in the parameter of Form ‘CAO’ as provided in rule 29 of the rules.
This order of ours will not apply to the orders directions and decisions, which has already attained finality.
Further court held, RERA Authority had no jurisdiction to adjudicate upon the issue regarding refund. Thus all 19 appeals stand allowed accordingly. So, the impugned orders passed in all the appeals are hereby set-aside.
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Now that Authority has tweaked the law through its amendments, following questions comes to my mind:
- These amended rules are applied from when & whether to ongoing cases as well? What will be the legality if the respondent builder challenges this in Appeal? Will again the same fate be repeated?
- Again the rules provide for scenario of two complaints Form M &N? A deviation from the orders of RERA Appellate Authority?
- Can amended rules overrides the statute i.e. Central RERA Act, 2016? A law-point?
- If first authority has to accept complaint then why there is an online provision to file complaint before adjudicating officer (AO). It should also go away?
- Does the section 31 of RERA Act, 2016 (Central Act) bars AO to entertain complaints at the onset/ beginning?
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Here Haryana RERA Authority has to tread with caution otherwise once again the judgment/ orders will suffer from inherent defect/ impunity on account of jurisdiction.The most worrying concern is the complaints with prayer of compensation coupled with interest & refund before AO is being withdrawn not even transferred which adds to the plight of homebuyers who already are suffering a lot.
The Haryana RERA Authority must make certain measures for transfer of complaint from one forum to another if they have already created two forums for the adjudication which is in contravention to the law settled by RERA Appellate Authorities of both Punjab & Haryana.
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Rest now RERA has become a complex law from an utter simple one. So don’t try to be a hero and become your advocate. Do take advice from expert/experienced Top/ Best/ RERA Punjab & RERA Panchkula Lawyer/ Advocate who can guide you well based on your facts of the case. Good Luck! Till then.
Hope the confusion ends soon and justice is delivered. For more info, Dial 99888-17966 or email at satish@legalseva net
COMPLAINTS FILED IN RERA FOR REFUND CASES ARE SINE DIE AND THE BUYERS ARE WAITING OF THEIR CASES ARE MOSTLY RETIRED PERSONS WHO DUE TO DELAY IN COMPLECTION AND POSESSION HAD FILED CASES IN RERA