Punjab-Haryana High Court
Janta Land Promoters Pvt Ltd vs Mandeep Cheema And Ors on 21 July, 2022
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
RERA Appeal No.21 of 2022
and other connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RERA Appeal No.21 of 2022
and other connected cases
Date of Order:25.07.2022
Reserved On:21.07.2022
Janta Land Promoters Pvt. Ltd.
...Appellant
Versus
Ms. Mandeep Cheema and others
...Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Rajiv Atma Ram, Sr. Advocate, with Ms. Sanah Sahni, Advocate Mr. Brijesh Khosla, Advocate Mr. Bhagoti Singh, Advocate for the appellants.
ANIL KSHETARPAL, J
1. This batch of appeals (detail whereof is given on the foot of the judgment) has been preferred by the promoters/ developers challenging the correctness of the orders passed by the Real Estate Regulatory Authority and the Appellate Tribunal. Both the authorities have directed the appellant to refund the excess amount which was recovered from the allottees on account of alleged additional super area. The promoter has also been directed to pay interest on the delayed delivery of possession of the apartments. It may be noted here that neither before the Appellate Tribunal nor before this Court, the appellant disputes the correctness of its liability to pay interest for the delayed payment of the amount. Hence, in these appeals, the only issue debated is with regard to the correctness of directions to refund the amount charged due to alleged increase in the super area. For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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2. Some facts are required to be noticed.
3. The learned Senior Counsel representing the appellant admits that the facts in each case may be slightly different, however, the point in issue is common, therefore, it is convenient to dispose of the appeals by a common judgment.
4. The learned senior counsel representing the appellant has stated the facts from RERA Appeal No.21 of 2022. Briefly, the facts are as follows:-
The allotment of Apartment No.1102, 11th Floor, Tower-
11, Sky Garden, Sector 66-A, Mohali, was made on 27.06.2014 for Rs. 53,00,000/-+(plus) applicable Service Tax, with respect to a 2BHK Apartment of 1345 Sq. feet (approximately) on the terms and conditions specified therein to the respondent. The allottee had paid an amount of Rs.13,65,942/- before the allotment letter and an amount of Rs.5,30,000/- plus applicable service tax was required to be deposited within a period of 30 days from the date of issue of the letter as the construction had already begun. Remaining payment has already been made in installments. Apart from the price of the apartment, the allottee was required to pay for the following facilities:-
(a) One Time Power Back Up Capital Expenditure Rs.40,000/- Lump sum.
(b) Monthly Power Back Up Consumption Charges
(c) One Time Club Membership Fee Rs.50,000/-
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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(d) Quarterly Club charges to be determined by the Company later on
(e) Water supply charges as per consumption
(f) Electricity charges as per consumption to the Punjab State Electricity Corporation Limited
(g) Sewerage charges as determined by the Company/Local Authority.
(h) PLC 3% extra green facing.
However, it can be reviewed from time to time by the company.
5. As per the terms and conditions of the allotment letter, the possession was to be delivered within a period of 36 months from the date of issuance of the allotment letter. For the decision in these appeals, the most important Clause-2.5, which is extracted as under:-
"2.5. The above price is tentative and subject to variation with reference to the actual measurement of the allotted Apartment and balance if any is to be deposited within 30 days of demand."
6. There was a delay in the delivery of possession of the apartments. In the meantime, the Central Government enacted the Real Estate (Regulation and Development ) Act, 2016 (hereinafter referred to as 'the 2016 Act'), with effect from 25.03.2016. Being an on going project, the appellant registered its project under the Act of 2016. Before delivery of possession, the allottee was directed to deposit Rs.1,84,584/- vide communication dated 17.03.2018 while projecting that there is a change in the super area of the apartments in the Sky Garden project. The promoter informed that the super area of the apartment has increased by 86 sq. feet implying thereby that the final super area of the respondent's apartment now For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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stands at 1431 sq. feet on account of exclusive premium skydeck and tower entrance reception area which was, erroneously left out while computing the prior super area of 1345 sq. feet. The increase in the price was worked out @ Rs.3,38,000/-, however, the promoter called upon the allottee to pay Rs.1,84,548/- on or before the possession of the apartment.
7. As per the case of the allottee that the promoter refused to deliver possession unless the allottee pays the amount, consequently, the amount was paid and the possession was delivered in the year 2019. Thereafter, various identical complaints were filed before the Punjab Real Estate Regulatory Authority (hereinafter referred to as PRERA) with a prayer to direct the promoter to refund the amount charged for additional super area as well as pay interest for delayed delivery of possession of the apartment. The promoter filed a reply justifying the recovery/receipt of the increased amount for super area while denying its liability to pay the amount of interest on account of delay in delivery of possession of the apartment. The PRERA, on appreciation of the facts, allowed all the similar complaints by a consolidated detailed order dated 18.06.2021. It was held that although Clause 2.5 of the allotment letter specifies that the original price is tentative, however, it can only be changed/revised/increased in case of change in the actual measurement of the allotted apartment. In other words, the PRERA found that unless and until there is an increase in the actual measurement of the allotted apartment, the promoter was not entitled to charge any additional amount. It was found that both the parties agree that there is no change in the actual measurement of the allotted apartment. The PRERA also found that no additional area has become available due to any For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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subsequent change but the promoter claims the amount on account of an alleged mistake, on its part, to include the common area while making the original calculations. The PRERA found that case put forth by the promoter is not believable and in any case, the allottee cannot be punished for the same.
8. The various appeals filed by the promoter were dismissed by the Appellate Tribunal while observing that not only the respondents who have approached the PRERA shall be entitled to refund but even the other identical allottees, who due to any reason, have failed to approach the authority shall also be liable to be refunded.
9. Heard the learned senior counsel representing the appellant at length and with his able assistance perused the paper book.
10. The learned senior counsel has addressed the court on the following four points:-
(1) The Real Estate Regulatory Authority had no jurisdiction to adjudicate the dispute as the exclusive jurisdiction to decide such disputes vest with the adjudicating authority under Section 71 and 72 of the 2016 Act.
(2) While referring to Rule 8 of the Punjab Real Estate (Regulation and Development) Rules, 2017, the learned senior counsel submits that under sub-Rule (3), the promoter is entitled to make any addition or alteration to the extent of 5% in the sanctioned plan, layout plan and other specifications without the previous written consent of the allottee. He submits that the alteration made falls For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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(3) The allottee has already deposited the amount, therefore, he is estopped from claiming the refund.
(4) Both the authorities have failed to record appropriate reasons before deciding the case.
11. At the cost of repetition, it may be noted that there is no increase in the carpet area of the flat, consequently, there is no change in the measurement of the apartment. It is also admitted that the entire building(s) have been constructed as per originally sanctioned building plan and there is no variation or additions in construction of the building. The appellant is demanding the amount on account of an alleged inadvertent error in calculating the area at the time of issuing allotment to the concerned allottees. It is claimed that due to a bonafide mistake, the area of the entrance lobby of the tower and skydeck has not been included while calculating the super area.
12. From a bare perusal of the allotment letter, it is evident that, originally, the allottee was allotted a 2BHK apartment of 1345 Sq. feet approximately. From the reading of the allotment letter, it is evident that neither the carpet area was specified nor there is any reference to the super area. In fact, the phrases "carpet area" and "super area" have been defined in 2013 Act which came to be enforced subsequently. As per Section 2(k) of the 2016 Act, the "carpet area" means the net usable floor area of an apartment, excluding the area covered by the external walls, area under service shafts, exclusive balcony or verandah area and exclusive open For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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terrace area, but includes the area covered by the internal partition walls of the apartment. The learned counsel representing the appellant has stated that the carpet area of the apartment was/is 880 sq. feet. which has remained unchanged. There is also no dispute that there is no addition or alteration in the area due to any change on account of actual measurement after the building has been constructed including various towers.
13. Before coming into force of the 2016 Act, the parties were governed by the terms and conditions in the contract in the absence of regulatory law. As per Clause 2.5 of the contract, which has been extracted above, it is evident that the parties had agreed to revise the price only in case of increase or decrease in actual measurement of the alloted apartment. In other words, the price of the apartment would change if there was increase or decrease in the actual measurement of the apartment which as per the 2016 Act is known as carpet area. In the present case, admittedly, there is no change in the measurement of the apartment which has been allotted.
14. Moreover, the promoter has not proved how and in what manner it failed to include the area of the lobby/entrance of the tower and skydeck in the original area, particularly when it was very much a part of the brochure which was shown to the allottees at the time of sale of the apartments. In the allotment letter, no distinction, in this regard, has been made. If, now, the promoter is permitted to charge for the additional area, it will result in permitting him to capitalize on its own error, if any. From the perspective of an allottee, he is getting the same apartment which was allotted to him but for a higher price than originally agreed. He is also getting the same facilities which were shown to him at the time of entering For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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into the contract. Now, burdening the allottee for the alleged mistake of the promoter would be inequitable particularly when he is not receiving any additional facilities on account of the increased price.
15. This matter can be examined from yet another angel. These apartments are of small size. As per the learned counsel representing the appellant, the carpet area of the apartment is only 880 sq. feet. Some of the allottes may have limited finances. They may not have opted for the flat, if they had, previously, been informed that the price of the apartment is Rs.54,84,548/- and not Rs.53,00,000/-. Further, there is no meeting of minds on the increased amount on account of increase in the Super Area. Thus, the allottees cannot be burdened with an additional amount which is not only beyond the contract but also inequitable.
16. The reliance placed by the learned senior counsel on sub-rule (3) of Rule 8, is not helpful because there is neither any addition nor alteration in the sanctioned plans, layout plans, specifications and the nature of fixtures, fitting and amenities described therein. Rule 8 of the 2017 Rules is extracted as under:-
8. Agreement for sale.-
(1) For the purpose of sub-section (2) of section 13, the agreement for sale shall be in the form as per Annexure 'A'.
(2) Any application letter, allotment letter or any other document signed by the allottee, in respect of the apartment, plot or building, prior to the execution and registration of the agreement for sale for such apartment, plot or building, as the case may be, shall not be construed to limit the rights and interests of the allottee under the agreement for sale.
(3) The Promoter shall not make any additions and For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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Provided that the Promoter may make such minor additions or alterations as may be required by the Allottee, or such minor changes or alterations as per the provisions of the Act:
Provided further that if the Authority competent to issue approvals is of the view that certain changes in the project are necessary, he may on application of the promoter do so for the reasons to be recorded in writing and in that case consent of allottees shall not be required."
17. Keeping in view the aforesaid facts, this court does not find any force in argument no.2, addressed by the learned senior counsel representing the appellant.
18. With reference to the first argument addressed by the learned senior counsel, it may be noted that the jurisdiction of the Real Estate Regulatory Authority and the Adjudicatory Officer is not only distinct but well-identified/compartmentalized. Section 31 of the 2016 Act provides for filing of complaints with the authority or the adjudicating officer. Section 32 defines the functions of the authority, whereas Section 34, 35, 36, 37 and 38 of the 2016 Act defines the powers of the authority. On reading of the aforesaid provisions it is evident that the Regulatory Authority has been constituted to perform the functions enlisted therein. Whereas, the powers of the Adjudicating Officer are confined to Section 71 and 72 of the 2016 Act, which are extracted as under:-
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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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 31 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 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 (68 of 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 For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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72. Factors to be taken into account by the adjudicating officer.--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."
19. On a careful reading of Section 71 of the 2016 Act, it is evident that for the purpose of adjudging compensation under Section 12, 14, 18 and 19 of the 2016 Act, the Adjudicating Officer is empowered to hold an enquiry in the prescribed manner and then decide the amount of compensation. Proviso to sub-Section (1) only refers to the persons who have approached the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission before the enforcement of the 2016 Act and they wish to withdraw their complaints before the authorities constituted under the Consumer Protection Act, 1986 and file them before the Adjudicating Officer under the 2016 Act. The proviso is only applicable to the matters pending during the transitory period when the Act of 2016 was enforced. For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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Section 72 of the 2016 Act provides for factors to be taken into account by the Adjudicating Officer. It may be noted here that under Rules of 2017, the particular form under which the complaint is to be made to the Regulatory Authority and the Adjudicating Officer have been specified. Form-'M' is with reference to a complaint to the Regulatory Authority whereas, Form-'N' is with reference to application to the Adjudicating Officer. Form-N only provides for claim for compensation under Section 31 read with Section 71 of the 2016 Act. In Para 5 of the Form-N, the expression used is "Compensation sought". Form-N is extracted as under:-
FORM 'N' [See rule 37(1)] APPLICATION TO ADJUDICATING OFFICER Claim for compensation under section 31 read with section 71 of the Act For use of Adjudicating Officers office:
Date of filing:________________________ Date of receipt by post:_______________________ Application No.: ________________________ Signature: ____________________ Authorized Officer: ___________________ IN THE ADJUDICATING OFFICERS OFFICE (Name of place) Between _______________________applicant(s) And _______________________Respondent(s) Details of claim:
1. Particulars of the applicant(s):
(i)Name of the applicant:
(ii)Address of the existing office / residence of the appellant:
(iii)Address for service of all notices:
(iv)Details of allottees apartment, plot or building
2.Particulars of the respondents:
(i)Name(s) of respondent:
(ii)Office address of the respondent:
(iii)Address for service of all notices:
(iv)Registration number and address of project:
3.Jurisdiction of the Adjudicating Officer:
The applicant declares that the subject matter of the claim falls For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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4. Facts of the case:
[give a concise statement of facts and grounds of claim against the promoter]
5.Compensation(s) sought:
In view of the facts mentioned in paragraph 4 above, the applicant prays for the following compensation(s) _____________________ [Specify below the compensation(s) claimed explaining the grounds of claim(s) and the legal provisions (if any) relied upon]
6.Claim not pending with any other court, etc.:
The applicant further declares that the matter regarding which this appeal has been made is not pending before any court of law or any other authority or any other tribunal(s).
7.Particulars of bank draft in respect of the fee in terms of sub-rule (1) of rule 36:
(iv) Amount
(v)Name of the bank on which drawn
(vi) Demand draft number
8. List of enclosures:
[Specify the details of enclosures with the application] Verification I____________(name in full block letters) son / daughter of_________ the applicant do hereby verify that the contents of paragraphs [1 to 8] are true to my personal knowledge and belief and that I have not suppressed any material fact(s). Place:
Date:
Signature of the applicant(s)"
20. The learned senior counsel has contended that the Supreme Court in New Tech Promoters and Developers (P) Ltd. vs. State of Uttar Pradesh, 2021 SCC online SC 1044, decided on 11.11.2021, held that such dispute can only be filed before the Adjudicating Officer. This court has carefully read the judgment. In para 31 of the SCC online reports, the Supreme Court framed five questions, which are extracted as under:-
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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1. Whether the 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?
2. Whether the authority has jurisdiction to direct return/refund of the amount to the allottee under Sections 12, 14, 18 and 19 of the Act or the jurisdiction exclusively lies with the adjudicating officer under Section 71 of the Act?
3. Whether Section 81 of the Act authorizes the authority to delegate its powers to a single member of the authority to hear complaints instituted under Section 31 of the Act?
4. Whether the condition of predeposit under proviso to Section 43(5) of the Act for entertaining substantive right of appeal is sustainable in law?
5. Whether the authority has power to issue recovery certificate for recovery of the principal amount under Section 40(1) of the Act? Question 1: Whether the 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?
21. Question No.2 is relevant for our case. The relevant discussion is in paras 75, 76, 81, 82, and 86, which are extracted as under:-
75. The legislature in its wisdom has made a specific provision delineating power to be exercised by the regulatory authority/adjudicating officer. "Refund of the amount" and "compensation" are two distinct components which the allottee or the person aggrieved is entitled to claim if the promoter has not been able to hand over possession with a nature of enquiry and mechanism provided under the Act. So far as the claim with respect to refund of amount on demand under Sections 18(1) and 19(4) of the Act is concerned, it vests within the jurisdiction of the regulatory authority.
Section 71 carves out the jurisdiction of the adjudicating officer to adjudge compensation under Sections 12, 14, 18 and 19 after holding enquiry under Section 71(3) of the Act keeping in view the broad contours referred to under Section 72 of the Act.
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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76. The submission made by learned counsel for the appellants that the proviso under Section 71(1) empowers the adjudicating officer to examine the complaints made under Sections 12, 14, 18 and 19 pending before the Consumer Disputes Redressal Forum/Commission is in different context and it was one time mechanism to provide a window to the consumers whose composite claims are pending before the Consumer Forum/Commission to avail the benevolent provision of the Act 2016 for the reason that under the Consumer Protection Act, there is no distinction as to whether the complaint is for refund of the amount or for compensation as defined under Section 71(1) of the Act, but after the Act 2016 has come into force, if any person aggrieved wants to make complaint for refund against the promotor or real estate agent other than compensation, it is to be lodged to the regulatory authority and for adjudging compensation to the adjudicating officer, and the delineation has been made to expedite the process of adjudication invoked by the person aggrieved when a complaint has been made under Section 31 of the Act to be adjudicated either by the authority/adjudicating officer as per the procedure prescribed under the Act.
81. The opening words of Section 71(1) of the Act make it clear that the scope and functions of the adjudicating officer are only for "adjudging compensation" under Sections 12, 14, 18 and 19 of the Act. If the legislative intent was to expand the scope of the powers of the adjudicating officer, then the wording of Section 71(1) ought to have been different. On the contrary, even the opening words of Section 71(2) of the Act make it clear that an application before the adjudicating officer is only for "adjudging compensation". Even in Section 71(3) of the Act, it is reiterated that the adjudicating officer may direct "to pay such compensation or interest" as the case may be as he thinks fit, in accordance with provisions of Sections 12, 14, 18 and 19 of the Act. This has to be seen together with the opening words of Section 72 of the Act, which reads "while adjudging the quantum of compensation or interest, as the case may be, under Section 71, the adjudicating officer shall have due regards" to the broad parameters to be kept in mind while adjudging compensation to be determined under Section 71 of the Act.
82. The further submission made by the learned counsel for the appellants that if the authority and the For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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adjudicating officer either come to different conclusions on the same questions or in a single complaint, the person aggrieved is seeking manifold reliefs with one of the relief of compensation and payment of interest, with the timelines being provided for the adjudicating officer to decide the complaint under Section 71 of the Act. At least, there is no provision which could be referred to expedite the matter if filed before the regulatory authority. The submission may not hold good for the reason that there is a complete delineation of the jurisdiction vested with the regulatory authority and the adjudicating officer. If there is any breach or violation of the provisions of Sections 12, 14, 18 and 19 of the Act by the promoter, such a complaint straightaway has to be filed before the regulatory authority. What is being referable to the adjudicating officer is for adjudging compensation, as reflected under Section 71 of the Act and accordingly rules and regulations have been framed by the authority for streamlining the complaints which are made by the aggrieved person either on account of violation of the provisions of Sections 12, 14, 18 and 19 or for adjudging compensation and there appears no question of any inconsistency being made, in the given circumstances, either by the regulatory authority or the adjudicating officer.
86. From the scheme of the Act of which a detailed reference has been made and taking note of power of adjudication delineated with the regulatory authority and adjudicating officer, what finally culls out is that although the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' and 'compensation', a conjoint reading of Sections 18 and 19 clearly manifests that when it comes to refund of the amount, and interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint. At the same time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18 and 19, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act. If the adjudication under Sections 12, 14, 18 and 19 other than compensation as envisaged, if extended to the adjudicating officer as prayed that, in our view, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under Section 71 and that would be against the mandate of the Act 2016. For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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Question no. 3: Whether Section 81 of the Act authorizes the authority to delegate its powers to a single member of the authority to hear complaints instituted under Section 31 of the Act?"
22. It is evident that the Court held that the Adjudicating Officer has the power to assess the compensation whenever required under the provisions of Section 12, 14, 18 and 19 of the 2016 Act. In this case, the allottees never claimed any compensation. They prayed for refund of the amount which was wrongly recovered and interest for each month's delay in delivery of possession which does not fall within the ambit of the term compensation. Hence, the Regulatory Authority under Chapter-V has the power to decide the question involved.
23. This matter can be examined from yet another perspective. On a careful reading of the orders passed by the Regulatory Authority as well as the Appellate Tribunal, it is evident that this point was not pressed by the promoter, any time in the proceedings before the authorities below. The learned senior counsel has failed to draw the attention of this Court to the discussion in the orders passed by the Authority or the Appellate Tribunal, on this point. No doubt, while filing the reply, the promoter objected to the jurisdiction of the Tribunal but never pressed upon the same. The Appellate Tribunal as well as this Court have the undisputed jurisdiction to decide the matter. In the considered view of this Court, now, at this stage, it will not be appropriate to relegate the allottees to the remedy before the Adjudicating Officer even if the argument of the learned senior counsel was to be accepted, particularly when he has failed to draw the attention of the court to any substantial error or any prejudice caused to the promoter.
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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24. The next argument of the learned senior counsel is to effect that since the amount has already been deposited by the allottees so the principle of estoppel applies. It is the case of the allottees that since the promoter refused to deliver possession, therefore, they were forced to pay the amount.
In such circumstances, there is no estoppel against the allottes from recovering the amount. In fact, the Act, itself, envisages refund of the amount if the promoter compels the allottees to pay by misusing his position. The doctrine of estoppel can apply, only if, on the representation of the allottee, the promoter has changed his position which is not the case herein.
25. The last contention of the learned senior counsel is to the effect that the Regulatory Authority and the Appellate Tribunal has not recorded any reasons. This court has carefully read the orders passed by the Regulatory Authority as well as the Appellate Tribunal. The orders are supported by sound reasons. In any case, this Court has re-examined the matter in detail.
26. Keeping in view the aforesaid discussion, the conclusion is inevitable. Consequently, all the appeals are dismissed.
27. All the pending miscellaneous applications, if any, are also disposed of.
July 25, 2022 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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Sr. No. Case No. Party Name
1. RERA Appeal No.32 of Janta Land Promoters Pvt. Ltd. vs. 2022 Yashpal Singh Kundlas and ors.
2. RERA Appeal No.34 of Janta Land Promoters Pvt. Ltd. vs. 2022 Ravi Inder Singh and ors.
3. RERA Appeal No.35 of Janta Land Promoters Pvt. Ltd. vs. 2022 Satish Kumar Wadhwa and ors.
4. RERA Appeal No.36 of Janta Land Promoters Pvt. Ltd. vs. 2022 Rohit Karol and ors.
5. RERA Appeal No.29 of Janta Land Promoters Pvt. Ltd. vs. 2022 Naveen Kalotra and ors.
6. RERA Appeal No.28 of Janta Land Promoters Pvt. Ltd. vs. 2022 Sapna Saini and ors.
7. RERA Appeal No.27 of Janta Land Promoters Pvt. Ltd. vs. 2022 Gurminder Kaur and ors.
8. RERA Appeal No.26 of Janta Land Promoters Pvt. Ltd. vs. 2022 Pritam Kumar Saini and ors.
9. RERA Appeal No.25 of Janta Land Promoters Pvt. Ltd. vs. 2022 Ms. Renu Sharma and ors.
10. RERA Appeal No.24 of Janta Land Promoters Pvt. Ltd. vs. 2022 Manjinder Singh Pannu and ors.
11. RERA Appeal No.23 of Janta Land Promoters Pvt. Ltd. vs. 2022 Rajiv Goel and ors.
12. RERA Appeal No.22 of Janta Land Promoters Pvt. Ltd. vs. 2022 Jitin Chhabra and ors.
13. RERA Appeal No.38 of Janta Land Promoters Pvt. Ltd. vs. 2022 Ashok Kumar Vig and ors.
14. RERA Appeal No.33 of Janta Land Promoters Pvt. Ltd. vs. 2022 Ajay Sharma and ors.
15. RERA Appeal No.21 of Janta Land Promoters Pvt. Ltd. vs. 2022 Ms. Mandeep Cheema and ors.
16. RERA Appeal No.31 of Janta Land Promoters Pvt. Ltd. vs. 2022 Ramandeep Singh and ors.
17. RERA Appeal No.37 of Janta Land Promoters Pvt. Ltd. vs. 2022 Inderjeet Kaur and ors.
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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18. RERA Appeal No.30 of Janta Land Promoters Pvt. Ltd. vs. 2022 Kanuj Sharma and ors.
(ANIL KSHETARPAL)
cj JUDGE
For Subsequent orders see RERA-APPL-22-2022, RERA-APPL-23-2022, RERA-APPL-24-2022 and 14 more.
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