Adjudication of Penalties

Single Member of RERA has the power and jurisdiction to consider a complaint under RERA | Merely transfer of project land title to allottee, real estate project does not come to end | Date of establishment of the RERA is not relevant to decide whether a project is liable to be registered or not | No separate procedure is prescribed for adjudicating of Registration issues under Section 3 and imposition of penalty under Section 59 of RERA – Shwas Builders and Developers Pvt. Ltd. and Ors. Vs. Premchand Surendran – Kerala High Court

Hon’ble Kerala High Court held that:

(i) The Single Member of K-RERA has the power and jurisdiction to consider a complaint as it is perfectly within his jurisdiction in view of the delegation of power by the K-RERA in exercise of its powers under Section 81 of the RERA.
(ii) It is true that when the promoter is not the owner of the land, the documents like building permits, completion certificates, etc., are obtained in the name of the landowners. But it does not in any way absolve the liability of respondents 1 to 4 as a promoter of the project.
(iii) The question of whether the project land is transferred to the allottee or not is not a relevant factor for deciding whether the real estate project is complete or not.
(iv) The date of establishment of the K-RERA is not relevant and material in the statutory scheme to decide whether a project is liable to be registered or not.
(v) Since no separate procedure is prescribed for adjudicating the question as to the registration of real estate projects under Section 3, and for adjudicating the imposition of penalty under Section 59, the K-RERA is free to adopt a procedure of its own in full compliance of the principles of natural justice. Of course, a uniform procedure is to be adopted by the K-RERA in all cases.

Single Member of RERA has the power and jurisdiction to consider a complaint under RERA | Merely transfer of project land title to allottee, real estate project does not come to end | Date of establishment of the RERA is not relevant to decide whether a project is liable to be registered or not | No separate procedure is prescribed for adjudicating of Registration issues under Section 3 and imposition of penalty under Section 59 of RERA – Shwas Builders and Developers Pvt. Ltd. and Ors. Vs. Premchand Surendran – Kerala High Court Read Post »

Landmark judgment in RERA, 2016 – Newtech Promoters and Developers Pvt. Ltd. Vs. State of UP & Ors. etc. – Supreme Court

This judgment covers: A. Object and Reasons of the Real Estate (Regulation and Development) Act, 2016. A.1 Statement of object and reasons. A.2 Interpretation of Section 18 of the RERA Act. A.3 Unconditional absolute and Unqualified Right of the Allottee to seek Refund: Section 18(1) and Section 19(4) of the RERA Act. A.4 Section 71 of the RERA Act. B. Whether Real Estate (Regulation and Development) Act, 2016 is retrospective or retroactive in its operation and what will be its legal consequence if tested on the anvil of the Constitution of India?. C. Whether the Regulatory Authority(RERA) has jurisdiction to direct return/refund of the amount to the allottee under Sections 12, 14, 18 and 19 of the RERA Act or the jurisdiction exclusively lies with the adjudicating officer under Section 71 of the RERA Act?. C.1 Refund of Amount. C.2 The interest of the promoter is equally safeguarded. C.3 Scope and functions of the Adjudicating Officer. C.4 If Regulatory Authority (RERA) and Adjudicating Officer either come to different conclusions on the same questions or in a single complaint?. C.5 If single complaint is filed seeking a combination of reliefs. C.6 Regulatory Authority disposes of the application expeditiously and not to restrain the mandate of 60 days as referred to under Section 71(3) of the Act. C.7 Conclusion. D. Whether Section 81 of the RERA Act authorizes the Regulatory Authority to delegate its powers to a single member of the authority to hear complaints instituted under Section 31 of the RERA Act?. E. Whether the condition of pre-deposit under proviso to Section 43(5) of the RERA Act for entertaining substantive right of appeal is sustainable in law?. E.1 Determination of Refund amount. E.2 Right of appeal which is a creature of the statute. E.3 Pre-deposit under Section 43(5) of RERA Act is not violate Articles 14 or 19(1)(g) of the Constitution of India. F. Whether the authority has the power to issue recovery certificates for recovery of the principal amount under Section 40(1) of the Act?. G. Disposed of

Landmark judgment in RERA, 2016 – Newtech Promoters and Developers Pvt. Ltd. Vs. State of UP & Ors. etc. – Supreme Court Read Post »

Power to waive of pre-deposit requirement under Section 43(5) of RERA | Constitutional validity of the proviso to Section 43(5) | Adjudication of Interest, Compensation, Penalty etc. under RERA | Powers and Jurisdiction of Real Estate Regulatory Authority and Adjudicating Officer – Experion Developers Pvt. Ltd. Vs. State of Haryana and others – Punjab & Haryana High Court

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Power to waive of pre-deposit requirement under Section 43(5) of RERA | Constitutional validity of the proviso to Section 43(5) | Adjudication of Interest, Compensation, Penalty etc. under RERA | Powers and Jurisdiction of Real Estate Regulatory Authority and Adjudicating Officer – Experion Developers Pvt. Ltd. Vs. State of Haryana and others – Punjab & Haryana High Court Read Post »

A Single Member of the Regulatory Authority (RERA) as well as Appellate Tribunal (REAT) cannot validly pass orders under the Real Estate (Regulation and Development) Act, 2016 – Janta Land Promoters Pvt. Ltd. Vs. Union of India and Ors. – Punjab & Haryana High Court

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A Single Member of the Regulatory Authority (RERA) as well as Appellate Tribunal (REAT) cannot validly pass orders under the Real Estate (Regulation and Development) Act, 2016 – Janta Land Promoters Pvt. Ltd. Vs. Union of India and Ors. – Punjab & Haryana High Court Read Post »

Adjudicating Officer under Section 71 of Real Estate (Regulation & Development) Act, 2016 has no power to award interest and compensation, in the event possession of the flat has been taken by the allottee from the promoter – Vibhor Vaibhav Infrahomes Pvt. Ltd. Vs. Union of India and 5 Ors. – Allahabad High Court

Section 71 of the Real Estate (Regulation & Development) Act, 2016 confers power upon an Adjudicating Officer to adjudge compensation under Sections 12, 14, 18 and 19. Sub-­section (3) of Section 71 provides that if the Adjudicating Officer 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 may be, as he thinks fit in accordance with the provisions of any of those sections.

Section 38(1) of the Act, 2016 confers power upon the ‘Authority‘ to impose penalty or interest in regard to contravention of obligations cast upon the promoters, the allottees and the real estate agents under the Act, Rules and Regulations. Power to award compensation or interest has been conferred under Section 71(1)/(3) of the Act, 2016 upon an Adjudicating Officer for adjudging compensation under Section 12, 14, 18 and Section 19 of the Act, 2016. Thus, the power to adjudge compensation has been conferred upon the Adjudicating Officer and not upon the Authority.

Adjudicating Officer under Section 71 of Real Estate (Regulation & Development) Act, 2016 has no power to award interest and compensation, in the event possession of the flat has been taken by the allottee from the promoter – Vibhor Vaibhav Infrahomes Pvt. Ltd. Vs. Union of India and 5 Ors. – Allahabad High Court Read Post »

Section 2(za)(ii) of RERA, 2016 does not restrict or provide that interest is payable only after the commencement of the Real Estate (Regulation & Development) Act, 2016 – Habitech Infrastructure Ltd. Vs. State of U.P. and 2 Ors. – Allahabad High Court

Section 2 (za) (ii) does not restrict or provide that interest is payable only after the commencement of the Act, and it takes care of the fact that once the allottee had made deposit with the promoter he is liable to pay the interest from the date of deposit of the entire amount or part of the amount. Similarly on the reading of Section 71 it is crystal clear that Adjudicating Officer has been adorned with the power of adjudicating compensation only under Sections 12, 14, 18 and 19 of the Act and not in regard to the refund of the amount or grant of interest on the amount deposited by the allottee with the promoter. Thus, power of refund of amount alongwith interest which has been provided under Section 18, with the authority was rightly exercised by it in the interest of justice.

Section 2(za)(ii) of RERA, 2016 does not restrict or provide that interest is payable only after the commencement of the Real Estate (Regulation & Development) Act, 2016 – Habitech Infrastructure Ltd. Vs. State of U.P. and 2 Ors. – Allahabad High Court Read Post »

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