The Allahabad High Court has held that a single member of RERA can adjudicate the complaints of home buyer.
A complaint was made by a home buyer before RERA for non delivery of possession of home within time. The complaint sought refund of the amount of Rs.25,36,985/- with interest.
The RERA Authority found that as per the agreement entered between the parties, possession of the flat in question should have been delivered by 29.02.2017. As such the RERA directed for refund of the principal amount alongwith interest. In pursuance thereof, execution was issued for amount of Rs.25,36,985/- towards the principal amount while component of interest was Rs.15,68.814/-.
Feeling aggrieved, the petitioner-builder challenged both the orders before the Allahabad High Court under Article 226 of Constitution of India.
Counsel for the Petitioner submitted that ordinarily an appeal against the order passed by RERA is maintainable but this case has exceptional circumstances therefore a writ petition would be maintainable.
It was pleaded that one member of RERA has passed the order in violation of the provisions of the Act of 2016. Section 21 provides for formation of Authority consist of Chairperson alongwith two whole time Members. The impugned order is by one Member alone going against the mandate of Section 21 of the Act of 2016. As such, there is no need to prefer an appeal as the order dated 20.03.2020 is without jurisdiction.
Further the award of interest is also illegal, as interest has been allowed even for the period prior to introduction of U.P. Real Estate (Regulation and Development)(Agreement for Sale/Lease) Rules, 2018
A Division bench of Allahabad High Court comprising Hon’ble Justice M.N. Bhandari and Hon’ble Justice R R Agarwal held that the issue has raised herein has been dealt with by the Court in the case of Writ -C No.2248 of 2020 (M/s K.D.P. Build Well Pvt. Ltd. vs. State of U.P. and 4 Others) vide judgment dated 04.02.2020 and in Writ- C No.3289 of 2020 (Rudra Buildwell Constructions Pvt. Ltd. vs. Poonam Sood and Another) vide judgment dated 06.02.2020 holding order by one member to be legal.
The Court refused to accept the submission of Petitioner Counsel that the Punjab and Haryana High Court has taken a different view. Further the court observed that the Petitioner did not raised any objection before the single Member about his competence to adjudicate the complaint. In absence of objection, the Authority proceeded with the matter. If the objection would have been taken and was sustainable, the complaint could have been decided by the Authority consisting of three Members. The petitioner has challenged the order in reference to the composition only when he lost in the complaint.
Referring to Section 21, 29 and 30 of the Act observed that it is not necessary that the adjudication of the complaint has to be made by the composition of Authority, as given under Section 21 of the Act of 2016 though as per Section 29 also, it should be by two Members in absence of the Chairperson. Further Section 30 protects proceedings from invalidation due to any vacancy.
So far as the challenge to the interest part is concerned, the Court observed that it is based upon the merits of the case, therefore appropriate remedy is Appeal not the Writ Jurisdiction.
