Last Updated on December 7, 2019 by Legalseva.net
As per the latest judgment by Haryana RERA Appellate Authority at Chandigarh, it is only the AO (Adjudicating Officer) who is vested with the powers to adjudicate complaints seeking refund, compensation or interest as per RERA Act, 2016 coming into force on May 1, 2017 and not the Authority comprising of members of IAS (Indian Administrative Services retired).
Who is an AO as per RERA Act?
Also Read- COMPENSATION BY HARYANA RERA PANCHKULA AUTHORITY?
Better to read Section 71 & 72 of RERA Act for clarification?
71. (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard:
Also Read- HARYANA RERA APPELLATE TRIBUNAL FOR PANCHKULA & GURUGRAM AUTHORITY
Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986, on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act.
(2) The application for adjudging compensation under sub-section (1), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of the application:
Provided that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period.
Also Read- 10 THINGS YOU SHOULD KNOW ABOUT RERA PANCHKULA
(3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section (1), he may direct to pay such compensation or interest, as the case any be, as he thinks fit in accordance with the provisions of any of those sections.
Also Read- EXECUTION OF RERA PANCHKULA ORDERS
72. While adjudging the quantum of compensation or interest, as the case may be, under section 71, the adjudicating officer shall have due regard to the following factors, namely:—
(a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default;
(b) the amount of loss caused as a result of the default;
(c) the repetitive nature of the default;
(d) such other factors which the adjudicating officer considers necessary to the case in furtherance of justice.
Also Read- COMPLETION CERTIFICATE AND PANCHKULA RERA (HRERA)
The relevant part out of the order of Haryana Real Estate Appellate Tribunal (HREAT) is shared below titled as Sameer Mahawar versus Real Estate Regulatory Authority Haryana at Para 48, Page 46 where it talks about the finding of the case:
48. Thus, as a result of our aforesaid discussions, we conclude and sum up our considered view in following manner :-
(i) 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.
Also Read- DOES RERA COVER COMMERCIAL PROJECTS?
(ii) 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.
(iii) 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.
Also Read- HOW TO FILE COMPLAINT IN PANCHKULA-RERA
Let us see Para 49 as well where it talks about who has got the jurisdiction to entertain complaints of refund:
49. In all the aforesaid appeals the appellants are still insisting/pressing their claim for the refund of the amount deposited by them along with interest. Ld. Regulatory Authority, in view of our aforesaid discussions had no jurisdiction to adjudicate upon the issue regarding refund. So, the impugned orders passed by the Ld. Authority declining the refund is without jurisdiction and cannot be sustained in the eyes of the law.
Thus all these appeals stand allowed accordingly. So, the impugned orders passed in all the appeals are hereby set-aside.
Also Read- RERA-PANCHKULA STRIKES AGAIN
Now para 50 (transfer of existing 15 complaints), 51 (where AO is not appointed), 52 (copy of the order) & 53 (to which all cases this judgment is applicable):
50. 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.
51. Before parting with this order it is pertinent to mention that we have been informed by Ld. Counsel for the parties that so far no adjudicating officer has been appointed by the Ld. Real Estate Regulatory Authority,Gurugram. The Ld. Adjudicating Officer, Panchkula, has dealt with these cases as a member of the Ld. Authority. He will also not be able to adjudicate these complaints as he had already expressed his opinion in the capacity as a member of the authority. So, the copy of this judgment/order be sent to the Ld. Principal Secretary to Govt. of Haryana, Town & Country Planning Department of Haryana and both the Ld. Authorities for taking immediate necessary steps for the appointment of the adequate number of adjudicating officers in accordance with law, so that the interest of the parties may not suffer any longer.
Also Read- RERA PUNJAB & PANCKULA HARYANA APPELLATE AUTHORITY
52. Copy of this order be placed on the record of all the connected appeals.
53. It is made clear that this order of ours will not apply to the orders directions and decisions, which has already attained finality.
Also Read- FAQS RERA PUNJAB HARYANA PANCHKULA
The decision is passed by Members of Haryana Real Estate Appellate Tribunal who are Justice Darshan Singh (Retd) as Chairman, Inderjeet Mehta (Member Judicial) & Anil Kumar Gupta (Member Technical) on 02.05.2019.
For more inquisitive and restless minds, the entire order can be read out here.
For the ease of homebuyers, I am breaking the entire judgment into takeaways here:
1 Now only AO (Who is a retired judge) has the powers to adjudicate complaints of refund , compensation and/or interest not The RERA Panchkula or Gurugram Authority (retired IAS’s).
2 The Judgment is prospective not retrospective which is only applicable to future cases and not the past ones.
Also Read- ROLE OF ADJUDICATING OFFICER IN RERA
3 Only 15 Cases who were part of the appeal is remanded back to AO and rest to no other case, this judgment is applicable. For new cases, this judgment applies.
4 The 15 Cases has to be heard by new AO of RERA Panchkula and first of RERA Gurugram Authority since there was no AO previously.
5 So RERA Gurugram Authority can’t entertain any new complaints as of now due to non appointment of AO who should be a retired judge.
Also Read- APPEAL TO HARYANA REAL ESTATE APPELLATE TRIBUNAL AT CHANDIGARH
6 RERA Panchkula Authority already has one AO so it is able to accept fresh/new complaints for the applicability of above said Judgment but to 15 Cases in appeal only new AO of RERA Panchkula can decide.
7 Rest for all decided cases where the order has attained finality, and no appeal has been preferred within 60 days , the judgment is of no relevance.
8 But if your Judgment is covered within 60 days, then you may file appeal before Haryana Real Estate Appellate Tribunal (HREAT) situated at Chandigarh and get set aside order of RERA Panchkula and Gurugram Authority.
9 Then your case can in the same manner be remanded back to new AO (Panchkula) or first AO (Gurugram).
10 For decided Cases out of limitation ie. more than 60 days have passed, you have a 50/50 chance as you need to justify delay and mere a new judgment does not entitles you to file an appeal. So take your call wisely.
Also Read- APPELLATE AUTHORITY FOR RERA GURUGRAM
Rest you can be in touch with best/top/expert lawyers/Advocates/Legal Advisor of Haryana RERA Appellate Authority (HREAT ) at Chandigarh for your case and may be for a free legal advice.
For more info on subject, please dial 99888-17966.
This post is written by Advocate Satish Mishra practising in Haryana Real Estate Appellate Tribunal at Chandigarh.
Also Read- RERA-PANCHKULA STRIKES AGAIN
Stay tuned for more latest news and updates of RERA Punjab and Haryana matters only on LegalSeva.
