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RERA - Authority, Tribunal and implementation of orders

Saturday, January 13, 2018

RERA authority recently set up an appellate tribunal, which aggrieved parties can approach to settle their problems. Advocate Tanmay Ketkar explains in detail while also comparing tribunals with civil courts

Independent and speedy mechanism for redressal of complaints is one of the most important features of RERA. Number of rulings available of MahaRERA portal is evidence of the speedy disposal. The rulings or orders passed till date can broadly be divided in two categories, first where the dispute has been settled amicably and second where the dispute has been adjudicated and decided by the authority on the basis merits of the complaint.

Many of us, more importantly the consumers or complainants have the misconception that once the complaint is disposed off or once the order is made everything over. However, in our system the decision and its implementation or execution are two separate aspects. Therefore, so long the order or decision is not complied with or implemented the complainant is not actually benefited. For e.g. if the authority has ordered the opponent to pay some amount to the complainant, the complainant is not benefited unless and until the amount is received by the complainant.

Order to execution
There are some obstacles in between order and its execution. First and foremost is the provision to appeal. In our system any person against whom an order is passed has a legal right to prefer an appeal against such order. Real Estate (Regulation and Development) Act, 2016 (RERA) also has provided for appeal wherein a person aggrieved from order can prefer an appeal first to the RERA tribunal, then to the High court and then to the apex court. Whenever an appeal is preferred, naturally appellant prays for staying the execution of impugned order or decision.

Staying or not staying the order ultimately depends on the merits of the case. If execution is not stayed, not a problem. However, if execution is stayed, the original complainant will have to wait for actual benefit till decision of appeal or all subsequent appeals. Considering the possibility of filing appeal, the complainant while filing complaint should take utmost care about the merits of the case. A little technical or legal flaw would pave the way for stay on execution.

The other obstacle is non-compliance of order by the opponent. The order is no guarantee of its compliance by the opponent. If the opponent fails to comply with the order, the complainants have two options. First as per the provisions of section 63 to 68 of RERA, to file a separate complaint against opponent for non-compliance of order. Second option is to apply for execution of order. As per section 57 of RERA, every order of tribunal is deemed to be a decree of civil court and the tribunal is empowered to execute the order or forwards the same to the competent civil court for execution. Similarly, as provided in rule 4 framed under RERA every order of the authority is also deemed to be decree of civil court and it has power to forward the same to competent civil court for execution.

About the tribunal
RERA authority is already set up and is functional. The state government by its notification dated 28.12.2017 has set up RERA appellate tribunal as well. According to section 43 the government has power to designate any tribunal functioning under any other law, to be RERA tribunal. Accordingly, the state government has designated the Maharashtra Revenue Tribunal, (functioning under Maharashtra Land Revenue Code) as RERA tribunal. The notification has clearly stated that the M.R.T. shall hear appeal till establishment of Maharashtra Real Estate Appellate Tribunal. The statement makes it clear that the designation of MRT as RERA tribunal is of temporary nature and separate appellate tribunal will be set up in future.

A bird eye view of RERA complaint mechanism, the orders and decisions, setting up of RERA tribunal and the provisions for execution in RERA will help us in understanding the real and practical environment of orders and executions.

Since the appellate tribunal is in place, there is a possibility of filing an appeal against the decisions. However, as per section 43(5) if the promoter intends to file an appeal, the appeal will not be entertained unless and until the promoter deposits with tribunal at least thirty percent of penalty. The provision is consumer friendly and will prevent vague and baseless appeals.

Tribunal vs civil courts
If we compare the RERA authority and tribunal with the established civil courts, the civil courts have more infrastructure and resources at their disposal. The authority and tribunal are sitting in Mumbai only, whereas every Taluka and District has civil court. This simple comparison indicates that, for authority and tribunal it is a tough job, if not impossible, to execute or implement the orders and decisions.

Considering the geographical, infrastructural, system and manpower limitations, it is very likely that the authority and tribunal will be compelled to forward the orders and decisions to competent civil court for execution.

Once the matter enters civil court it may not remain untouched fromshortcomings of conventional working of civil court, which necessitated the enactment of RERA and establishment of separate mechanism. For now, with establishment of RERA authority and tribunal the complainants are guaranteed of speedy disposal that is order and decision on the complaints. Let us hope that the government will provide necessary infrastructure and resources to authority and tribunal, which will enable them to ensure speedy execution as well. Speedy disposal and execution will ensure the welfare of the consumers.

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