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Madhya Pradesh High Court · body

2020 DIGILAW 300 (MP)

SOWMYA R. v. STATE OF M. P.

2020-02-25

AJAY KUMAR MITTAL, VIJAY KUMAR SHUKLA

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ORDER VIJAY KUMAR SHUKLA, J. – The petitioners, who are Advocates by profession, have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India as Public Interest Litigation, challenging the validity of Rule 26(2), 26(3) and 26(5) of ‘the Madhya Pradesh Real Estate (Regulation and Development) Rules, 2017’ (hereinafter referred as ‘Rules, 2017’) as amended vide amendment dated 20-9-2019 on the ground that the aforesaid provisions are ultra vires to the parent Act called ‘the Real Estate (Regulation and Development) Act, 2016’ (hereinafter referred as ‘Act’). 2. The petitioners urged that the aforesaid Rules, 2017 are inconsistent with the provisions of section 71 of the Act. It is contended that parent Act empowers only Adjudicating Officer to receive complaints, issue summons, inquire and adjudicate the complaints filed under sections 12, 14, 18 and 19 of the Act. By the impugned provisions the Authority established under section 20 of the Act has been empowered to receive, issue summons and inquire and adjudicate the complaints filed under sections 12, 14, 18 and 19. It is argued that section 71 of the Act categorically provided the Adjudicating Officer to receive and inquire the complaint, therefore, the provisions of Rule 26(2), 26(3) and 26(5) of the Rules, 2017 are inconsistent to the Act and are liable to be struck down as ultra vires. 3. To appreciate the aforesaid contentions, it would be apt to reproduce Rule 26 of the Rules 2017 : – “26. Manner of filing a complaint with the adjudicating officer and inquiry by the adjudicating officer. – (1) Any aggrieved person may file a complaint for compensation under sections 12, 14, 18 and 19 to be decided by the adjudicating officer, in Form ‘N’ which shall be accompanied by payment in the manner prescribed of a fee of rupees one thousand. (2) Upon receipt of the complaint the Authority shall examine it for admissibility; if it is prima facie found to be without substance or beyond jurisdiction or without locus standi, the Authority may reject it or decline to accept it, for the reason to be recorded in the form of a written order. Provided that no complaint receive under sub-rule (1) shall be rejected without giving an opportunity of hearing the complainant or his authorised agent an opportunity to be heard. Provided that no complaint receive under sub-rule (1) shall be rejected without giving an opportunity of hearing the complainant or his authorised agent an opportunity to be heard. (3) if the Authority finds the complaint to be prima facie admissible as a case for compensation under sections 12, 14, 18 or 19, it shall transfer it to the concerned adjudicating officer for further action. (4) The adjudicating officer shall for the purposes of adjudging compensation follow summary procedure for inquiry in the following manner, namely, (a) upon receipt of the complaint the adjudicating officer shall issue a notice along with particulars of the alleged contravention and the relevant documents to the promoter; (b) If the respondent is a promoter of a registered project, then issue of notice by e-mail to the up-dated e-mail address given by him in the record of the Authority shall be sufficient and proof of his having been validly served; (c) the notice shall specify a date and time for further hearing. (d) If the respondent chooses to be represented by an authorized person as per the provisions of section 56, written authorization to act as such and the written consent thereto by such authorized person, both in original, shall be presented to the adjudicating officer on or before the time fixed for hearing; (e) On the date so fixed, the adjudicating officer shall explain to the respondent or his authorized agent, as the case may be, about the contravention alleged to have been committed in relation to any of the provisions of the Act or the rules and regulations made there under and if the respondent – (i) pleads guilty, the adjudicating officer shall record the plea, and award such compensation as he thinks fit in accordance with the provisions of the Act or the rules or the regulations, made there under ; (ii) does not plead guilty and contests the complaint the adjudicating officer shall require the respondent to submit an explanation in writing. (f) in case the adjudicating officer is satisfied on the basis of the submissions made that the complaint does not require any further inquiry he may dismiss the complaint; (g) in case the adjudicating officer is satisfied on the basis of the submissions made that the there is need for further hearing into the complaint he may order production of documents or other evidence on a date and time fixed by him; (h) the adjudicating officer shall have the power to carry out an inquiry into the complaint on the basis of documents and submissions; (i) the adjudicating officer shall have the 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 documents which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and in taking such evidence the adjudicating officer shall not be bound to observe the provisions of the Indian Evidence Act, 1872 (11 of 1872) (j) On the date so fixed, the adjudicating officer upon consideration of the evidence produced before it and other records and submissions is satisfied that – (i) the respondent is liable to pay compensation, the adjudicating officer may, by order in writing, order payment of such compensation as deemed fit, by the respondent to the complaint; or; (ii) the respondent is not liable to pay any compensation, the adjudicating officer, may by order in writing, order payment of such compensation as deemed fit, by the respondent to the complainant; or; (k) If any person fails, neglects or refuses to appear, or present himself as required before the adjudicating officer, the adjudicating officer shall have the power to proceed with the inquiry in the absence of such person or persons after recording the reasons for doing so. (5) The time limit for disposal of the case prescribed in sub-section (2) of section 71 shall be calculated from the date of transfer of the case by the Authority to the adjudicating officer.” 4. It would also be apposite to reproduce relevant provisions of the Act, which reads thus : – “The Real Estate (Regulation and Development) Act, 2016 : “2. It would also be apposite to reproduce relevant provisions of the Act, which reads thus : – “The Real Estate (Regulation and Development) Act, 2016 : “2. (a) “adjudicating officer” means the adjudicating officer appointed under sub section (1) of section 71; (i) “Authority” means the Real Estate Regulatory Authority established under sub-section (1) of section 20; … … … … … … …. …. …. 71. Power to adjudicate. – (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 : Provided that any person whose complaint in respect of matters covered under section 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. (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 8 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.” 5. After receiving the assent of the President on 25th March, 2016, the Act called “The Real Estate (Regulation and Development) Act, 2016” was enacted. The purpose is to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment of building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector. It also covers the adjudicating mechanism for speedy dispute redressal for which it provides for the establishment of the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer in relation to the matters connected therewith or incidental thereto. As per the provisions of section 2(a) ‘adjudicating officer’ means the adjudicating officer appointed under sub section (1) of section 71. The ‘Authority’ is defined under section 2(i) means ‘the Real Estate Regulatory Authority (hereinafter referred to in short as ‘RERA’) established under sub-section (1) of section 20. The ‘adjudicating officer’ is appointed by the ‘Authority’ in consultation with the appropriate Government as per sub-section (1) of section 71. 6. The basic essential features are contained in various statutoruy provisions which are referred hereinafter. The functions of the Authority are prescribed under section 32 of the Act. Whereas, definition of ‘Authority’ is engrafted under section 34. Section 35 empowers the ‘Authority’ to call for information, conduct investigations on a complaint or suo motu. The Real Estate Appellate Tribunal is constituted under section 43 of the Act. Section 53 confers power on the Tribunal and an appeal lies to the High Court. Whereas, definition of ‘Authority’ is engrafted under section 34. Section 35 empowers the ‘Authority’ to call for information, conduct investigations on a complaint or suo motu. The Real Estate Appellate Tribunal is constituted under section 43 of the Act. Section 53 confers power on the Tribunal and an appeal lies to the High Court. Thus, there are three forums under the Act for adjudication of the dispute namely ‘adjudicating officer’ RERA (‘Authority’) thereafter, the Appellate Tribunal and the High Court. 7. As per section 71 power to adjudicate for the purpose of adjudging compensation under section 12, 14, 18 and 19, the authority shall appoint in consultation with the appropriate Government ‘adjudicating officer’ for holding an inquiry in the ‘prescribed manner’ after giving any person concerned a reasonable opportunity of being heard. In exercise of the powers conferred under section 84 of the Act read with sub clause (iv) of clause (g) of section 2 of the Act, the State Government has made the rules and the manner has been prescribed for filing a complaint with the adjudicating officer and inquiry by the adjudicating officer. Sub-rule (2) of Rule 26 provides that upon receipt of the complaint, the ‘Authority’ shall examine it for admissibility if it is prima facie found to be without substance or without jurisdiction or without locus standi, the Authority may reject it or decline to accept it for the reasons to be recorded in the form of a written order. It is further provided that no complaint under sub section (1) of Rule 26 shall be rejected without giving any opportunity of hearing the complainant or his authorized attendant. As per sub-rule (3) of Rule 26, if the authority finds the complaint to be prima facie admissible as the case for compensation under section 12, 14, 18 or 19, it shall transfer it to the concerned ‘Adjudicating Officer’ for further action. Sub-rule (4) of Rule 26 engrafts procedure for inquiry by the Adjudicating Officer. Sub-rule (5) of Rule 26 speaks about time limit for disposal of the case prescribed under sub-section (2) of section 71 shall be calculated from the date of transfer of the case by the Authority to the adjudicating officer. 8. Sub-rule (4) of Rule 26 engrafts procedure for inquiry by the Adjudicating Officer. Sub-rule (5) of Rule 26 speaks about time limit for disposal of the case prescribed under sub-section (2) of section 71 shall be calculated from the date of transfer of the case by the Authority to the adjudicating officer. 8. On a conjoint reading of the above statutory provisions we do not find that sub-rules (2), (3) and (5) of Rule 26 are inconsistent or ultra vires to section 71 of the Act. Before adjudging the compensation under section 12, 14, 18 and 19, the ‘authority’ has been conferred power to examine the admissibility of a complaint, if the authority prima facie finds that the complaint is without substance or beyond jurisdiction or beyond locus standi at this stage itself the authority may reject the complaint. The said power to the authority is with a rider by way of proviso of giving opportunity of hearing to the complainant or his authorized agent. If the Authority finds that complaint is not liable to be rejected on the ground of prima facie case or jurisdiction or locus standi, the complaint shall be forwarded to the Adjudicating Officer, appointed by the authority under section 71 for the purpose of adjudicating compensation under the aforesaid provision. The conferral of power to the Authority to examine the admissibility of a complaint is not inconsistent with the provisions of section 71 of the Act. The ‘admissibility’ of a complaint and ‘adjudging’ the compensation are different stages. The authority has been conferred the said power to find out the maintainability of the complaint itself and in case if the complaint is frivolous or without jurisdiction or without locus standi, the same can be rejected at the threshold without transferring it to the adjudicating officer for the purpose of adjudging the compensation. The determination of compensation would be at the subsequent stage if the complaint is found to be admissible by the authority. The power conferred to the ‘authority’ is well guided by the proviso to afford opportunity of hearing to the complainant or his attendant and further the said order is subject to the provisions of the appeal to the higher authorities. Thus, the impugned Rules are not inconsistent with the provisions of the Act. 9. In view of the aforesaid, we do not find any merit in the writ petition. Thus, the impugned Rules are not inconsistent with the provisions of the Act. 9. In view of the aforesaid, we do not find any merit in the writ petition. The petition is dismissed.