Why should one be aware of remedies available under RERA, 2016?
- Any law is only good as its enforceability.
- One of the reason for India being at 100th position on ‘Ease of Doing Business’ lack of effective and time-bound mechanism to enforce contracts in case either party to the contract defaults.
- This lacuna of our judicial system has been exploited by errant builders/developers so far. With advent of RERA, 2016, the practice of defaulting on commitments by builder/developers without any consequences, is set to end.
With an aim to regulate capital-intensive and high stake industry of Real Estate and in order to protect interests of buyers, particularly home-buyers, Central government introduced Real Estate (Regulation & Development) Act, 2016. However, this law has to be implemented by the states by formulating respective rules and regulations.
State of Maharashtra promptly implemented the RERA, 2016 with effect from 1st May 2017, by introducing necessary rules and regulations and most importantly constituted MahaRERA to implement the law.
This article aims to guide person seeking justice under RERA, 2016 by consolidating various sections and rules relating to enforcement mechanism, in the state of Maharashtra.
In order to better understand the flow of procedure to seek relief under RERA, 2016, let us take the illustration of Ms. A (Allottee) who has grievance against M/s. P & Co. (Promoter).
Facts of Grievance
- M/s. P & Co. had committed delivery of flat till 30th June 2018 but failed to deliver so.
- Ms. A wishes to continue in the project but asks for interest for period of delay.
- M/s. P & Co. refuses to pay interest by saying that the delay is caused due to factors beyond their control.
Now, let us understand what remedies are available to Ms. A to redress his grievances under RERA, 2016.
I. MahaRERA Conciliation and Dispute Resolution Forum was formed in order to promote amicable settlement of disputes. The salient features of this forum are:
1. It was introduced vide Circular No. 15 / 2018
2. Only those disputes that involve violation of provisions of RERA Act, 2016, relevant Rules and Regulations are eligible for conciliation.
3. Application for conciliation has to be filed online, to which other party must give consent within 7 days.
4. If other party gives consent for conciliation, first party shall pay fees of Rs 1,000 + GST.
5. Both parties must attend on scheduled date and time. They can attend either personally or through authorized representative.
6. If dispute is settled, the ‘Consent Agreement’ will be drawn, which will be signed by the Parties concerned and the Conciliators. Consent Agreement is binding on both parties.
7. If dispute is not settled, parties can approach MahaRERA.
Thus, Ms. A may approach conciliation forum of MahaRERA for cost-effective remedy to her grievances. If the dispute couldn’t be settled or Ms. A feels that dispute cannot be settled through conciliation, she may proceed to following options.
II. MahaRERA Authority or Adjudicating officer is the first grievance redressal platform to hear and dispose grievances under RERA, 2016.
Whether Ms. A should file her complaint with MahaRERA Authority or Adjudicating officer depends upon nature of complaint.
Following are the points to be kept in mind while filing complaint with the Adjudicating officer:
- Nature of Complaints
1. Loss or damage sustained to Ms. A because of advance paid to M/s. P & & Co. based on any incorrect, false statement included in the notice advertisement or prospectus, or on the basis of any model apartment. (Section 12)
2. Any additions and alterations made in the sanctioned plans without the previous consent of allottees. (Section 14)
3. Failure or refusal on part of M/s. P & & Co. to rectify any structural defect or any other defect in workmanship, quality or provision of services or any other obligations as per the agreement for sale relating to such development which is brought to the notice of the promoter within a period of five years by the allottee. (Section 14)
4. Promoter M/s. P & & Co.fails to complete or is unable to give possession of an apartment, plot or building as per the date of completion mentioned in Agreement for Sale. (Section 18)
5. Promoter refuses to furnish relevant documents and information such as sanctioned plans, layout plans, stage-wise time schedule of completion. (Section 19)
6. Allottee fails or denies to pay necessary payments in the manner and within the time as specified in the agreement for sale. (Section 19)
- Appeal shall be filed in Form B along with fees of Rs 5,000.
Since, Ms. A’s case fall under point no. iv above, she would file complaint with Adjudicating Officer.
In case grievance of Ms. A doesn’t fall into any of the above stated nature of complaints, she would file her grievance with Hon’ble MahaRERA authority.
- The appeal shall be filed in Form A along with fees of Rs 5,000.
III. Appellate Tribunal: If any party to dispute is aggrieved by order issued by Adjudicating Officer or MahaRERA Authority, they can file appeal with the Appellate Tribunal. Following are important provisions in respect of appeal:
1. Appeal can be filed within 60 days of receipt of order
2. Appeal is to be filed in Form ‘C’
3. Appeal fees of Rs 5,000 needs to be paid by NEFT or any digital mode.
4. Tribunal will endeavour to dispose appeal within 60 days of receipt of appeal.
If Ms. A or M/s. P & & Co. is not satisfied with the decision of authority or adjudicating officer, they can approach appellate tribunal.
IV. High Court: Any person aggrieved by decision or order of the Appellate Tribunal, may, file an appeal to the High Court. Salient points to be kept in mind are:
1. Appeal should be filed within 60 days from the date of communication of the decision or order of the Appellate Tribunal
2. Appeal can be filed only on grounds of “Substantial Question of Law”, OR “Order passed ex-parte”.
3. High Court in a second appeal cannot re-appreciate evidence or facts unless the case involves a substantial question of law.
Thus, Ms. A or M/s. P & & Co. may file an appeal before High Court provided above conditions are met.
Who can file complaint?
- As we saw in the illustration above, an Allottee can file complaint against Promoter for different grievances such as delayed possession, structural defect, failure to re enter and register agreement for sale, unfair business practice and so on.
- Similarly, allottee can file complaint against real estate agent, under circumstances such as unfair trade practices or providing misleading and false information.
- It is important to note that, even Promoter can file complaint against Allottee in case allottee fails to make payment as per schedule of instalments agreed between them.
The experience so far shows that, adjudicating officer, the MahaRERA, appellate tribunal and conciliation forum has efficiently and effectively disposed of thousands of complaints and has taken appropriate actions against defaulting builders/developers as well as allottees. One can see number of cases dealt with by above stated authorities at: https://maharerait.mahaonline.gov.in/searchlist/PublicViewDashboard
For further guidance get in touch with us at cakevalm@gmail.com.
Disclaimer: This article is for the purpose of general awareness and does not represent professional opinion of the author.
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