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Bhartesh Singh Thakur
Tribune News Service
Chandigarh, May 21
The Haryana Real Estate Appellate Tribunal (HREAT), Chandigarh, has once again said that the Real Estate Regulatory Authority (RERA) has no jurisdiction to order refund in disputes with real estate builders. RERA has offices in Panchkula and Gurugram.
While allowing two appeals by M/s Ansal Housing Limited, New Delhi, the Bench comprising Chairman Justice Darshan Singh (retd), Judicial Member Inderjeet Mehta and Technical Member Anil Kumar Gupta ordered that “the complaints dealing with the relief of refund along with interest can only be entertained and adjudicated by the Adjudicating Officer and the learned authority (RERA) has no jurisdiction to grant the relief of refund”. It added that the impugned orders in the appeals were without jurisdiction.
While interpreting Section 11 (4), 34 (f) and 38 of the Real Estate (Regulation and Development) Act, the HREAT said that RERA “has powers only to impose a penalty or interest and the refund nowhere figures therein”.
The Tribunal also clarified that both “the authority (RERA) and the Adjudicating Officer have different spheres/ jurisdictions and it cannot be over-lapping”. It specified that “Rule 28 of the Rules categorically provides that the authority (RERA) will have jurisdiction to entertain complaints for any violation of the Act/ Rules and regulations made there under, save as those provided to be adjudicated by the Adjudicating Officer”.
Earlier, the HREAT had decided that complaints for the grant of compensation would also be decided by the Adjudicating Officer and not RERA.
The Adjudicating Officer has to be a serving or retired District Judge or Additional District Judge.
HREAT can order complete waiver of pre-deposit
Section 43 of the Real Estate Act says that when a promoter files an appeal with the Appellate Tribunal, it shall not be entertained without first having deposited at least 30 per cent of the penalty or such higher percentage, or the total amount to be paid to the allottee, including interest and compensation imposed on him.
But the HREAT said that “the requirement of pre-deposit is not mandatory and the court/ Appellate Tribunal has inherent powers to partially and completely waive the condition of pre-deposit. But this power should not be exercised in a routine way or as a matter of course. It can only be exercised if a strong prima facie case is made out”.
It added, “The partial or complete waiver will be granted only in deserving and appropriate cases where the Appellate Authority is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the condition of pre-deposit to continue as a condition precedent to hear the appellant”.
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