ANALYZING THE AMBIT AND POWERS OF ‘ADJUCATING OFFICER’ UNDER THE PROVISIONS OF THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016 AND THE KARNATAKA REAL ESTATE (REGULATION AND DEVELOPMENT) RULES, 2017
- Authored by Mr. Hitendra V.Hiremath (works as Legal Consultant with RERA Consultants LLP and has earlier worked as In-House Counsel at Shriram Properties Private Limited and thereafter has worked with an investment banking firm Capaegis at Bengaluru, Karnataka, India)
Who is Adjudicating Officer?
Section. 2(a) of Real Estate (Regulation and Development) Act, 2016 (“Act”) defines Adjudicating officer as officer appointed under sub-section (1) of Section 71 of the Act.
If we read Section.71 of the Act, it stipulates that the authority in consultation with the appropriate Government shall appoint one or more judicial officers who is or has been a District Judge to be an adjudicating officer for holding an inquiry with respect to violation under Section.12, 14, 18 and 19 of the Act.
Empowerment of Adjudicating Officer to adjudicate matters under the Act:
Under the Act to hear the complaint relating to the following violations:
- Incorrect or false information by Promoter of project in advertisement or prospectus of real estate project.
- Non-adherence to sanctioned plans, layout plans and specifications of real estate project as approved by competent authorities.
- Structural defect in the real estate project till 5(five) years from the date of handing over of possession of apartment, plot or building.
- Failure to complete the development of the real estate project as per the agreed time under agreement for sale or due to discontinuance of business of the Promoter.
- Failure to give possession of the apartment, plot or building as the case may be along with common areas of the real estate project as per the completion date submitted to complete the real estate project.
- Defective title of land of the real estate project.
- Failure to provide the approved sanctioned plans, layout plans along with specifications, necessary documents including that of common area after handing over of the physical possession of apartment or plot or building to the allottee/purchaser.
- Failure to update the stage wise completion including the provisions of water, sanitation, electricity and other amenities and services as agreed with the allottee/purchaser for the real estate project to allottees/purchasers
- Failure to make necessary payments as per the term of agreement for sale, registration charges, municipal taxes, water, electricity charges, maintenance charges, ground rent and other charges, if any to promoter by allottee/purchaser.
- Non-Participation of allottee/purchaser towards the formation of an association or society or co-operative society or a federation of the same.
- Failure to take physical possession of apartment, plot or building as the case may be within a period of two months of issuance of occupancy certificate
- Non-Participation of allottee/purchaser towards registration of conveyance deed of the apartment, plot or building as the case may be
Note a complaint can be filed by an allottee/purchaser for violation of provision under Section. 12, 14 and 18 and the promoter can file a complaint as against allottee/purchaser for violation of provision under Section.19.
What Complaint should include?
Allottee/Purchaser/Promoter can file complaint with the adjudicating officer for any violation or contravention of the provisions as aforementioned under Section. 31 of the Act and under Rule. 29 and provide the information as mentioned under Form. N of Karnataka Real Estate (Regulation and Development) Rules, 2017 (“Rules”) with necessary fees and following details of the complaint:
- Particulars of complainants(s) and respondents, i.e., name, address and address for service of all notices.
- Jurisdiction of regulatory authority
- Facts of the case
- Relief(s) sought (in view of facts of case as above mentioned)
- Interim order, if prayed for pending final decision of the complaint
- Declaration that the complaint is not pending before any forums or courts
- Supporting Documents
Note that as there is existing provision made for filing online complaint, the complaint can be filed as per the information provided and asked online.
Manner of holding enquiry after filing of complaint:
As per Rule.29 of Rules, upon receipt of the complaint the regulatory authority shall issue the notice with particulars of alleged contravention with relevant documents to respondent intimating the date and time of hearing
Thereafter, respondent to reply to the notice in respect of the complaint. If respondent pleads guilty the adjudicating officer shall pass necessary orders as per the provisions of the Act and Rules, if respondent does not plead guilty and contests the complaint, the adjudicating shall hear the respondent and complainant and pass the necessary order based on the submissions made.
Factors to be taken into account by the Adjudicating Officer while deciding the compensation or interest:
The Adjudicating Officer while adjudging the quantum of compensation or the interest, as the case may be under section 71 have to take into account following factors:
- the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default
- the amount of loss caused as result of the default
- the repetitive nature of the default
In Prakash Chand Arohi v. M/s. Pivotal Infrastructure Pvt Ltd, Complaint No. RERA-PKL-COMP.49/2018 decided by Haryana Real Estate Regulatory Authority, Panchkula. In the instant complaint, Mr. Rajan Gupta, Chairman observed the following:
- Para 2, Page No.31: Courts and authorities must exercise their powers with restrain and keep balance between both the parties, authorities have to tone down the oppressive provision under the agreement, however authorities should not impose their own value system over the substantive provisions which are lawful.
- Para g, Page No.32 and Para f, Page No.27 and 28: The Authorities must take stricter action if the money collected from the allottees/purchasers are diverted or siphoned away by the Promoter. However, sympathetic view to be taken in cases where Promoters have faithfully invested the money collected from the Allottees/Purchasers on the project, however the project is facing difficulties due to obtaining numerous clearances and compliances with the myriad laws and additional risk die to downtrend in the market affecting the sales and due to delay in payments by the Allottees/Purchasers.