This is Part 2 of 3 Part blog series in which we will discuss the composition, powers & functions of Real Estate Regulatory Authority & Real Estate Appellate Tribunal.

In Part 1 we have discussed what is RERA, registration and revocation of Real estate projects, Functions, powers and duties of promoters & allottees

Real Estate Regulatory Authority1:

The appropriate government within a period of one year from the date of coming of this Act has to establish an Authority known as Real Estate Regulatory Authority to exercise the powers conferred and to perform the functions given under this Act. Appropriate government of 2 or more States or Union territories if it deems fit establish one single authority or to establish more than 1 authority in a State or Union Territory.

It is a body corporate having a perpetual succession, common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and, by the said name, sue or be sued.

Composition2:

The Authority consist of a chairperson and not less than 2 whole time members to be appointed by the appropriate government.

Qualification3:

The Chairperson and the other members of the Authority shall be appointed by the appropriate government on the recommendation of the selection committee consists of Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing and the Law Secretary in the prescribed manner, from amongst the persons having adequate knowledge of and professional experience of at-least twenty years in case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical experts from relevant fields, planning, law, commerce, accountancy, industry, management, social service, public affairs or administration.

A person who is, or has been, in the service of the State Government shall not be appointed as a Chairperson unless such person has held the post of Additional Secretary to the Central Government or any equivalent post in the Central Government or State Government.

A person who is, or has been, in the service of the State Government shall not be appointed as a member unless such person has held the post of Secretary to the State Government or any equivalent post in the State Government or Central Government.

Term4:

The Chairperson and the Members shall hold the office for a term:

  • Not exceeding 5 years from the date on which they enter upon their office until they attain the age of 65 years of age whichever is earlier,
  • Not to be eligible for re-appointment and such persons should not have any financial or other interest which is likely to affect prejudicially his functions as such member.

The Chairperson or member may relinquish his office by giving in writing to the appropriate government notice of less than 3 months and any such vacancy caused should be filled within 3 months from the date on which such vacancy occurs.

Disqualification of Chairperson and other Members5:

The appropriate government may remove the Chairperson or other Members from the office where they have been:

  1. Adjudged as an Insolvent.
  2. Convicted of an offence involving, moral turpitude.
  3. Physically or mentally incapable of acting as a member.
  4. Acquired such financial or other interest as is likely to affect prejudicially his functions.
  5. Abused his position as to render his continuance in office prejudicial to the public interest.

Meetings of Authority6:

  • Authority should meet at such place and time and follow such rules of procedures specified in the regulations made by the Authority.
  • If Chairperson is unable to attend the meeting, any other member chosen from the members present amongst themselves at the meeting, shall preside the meeting.
  • Questions which come before the Authority should be decided by a majority of votes by the members present and voting. In the event of equality, Chairperson or in his absence, person residing the meeting shall have second or casting vote.
  • Any matter before the Authority should be disposed of within the period of 60 days on receipt of application. If not, then reason to be given in writing.

No act or proceeding of Authority shall be invalid merely because of:

  1. Any vacancy or defect in the constitution of Authority.
  2. Any defect in the appointment of a person acting as a Member of the Authority.
  3. Any irregularity in the procedure of Authority.

Functions of Authority7:

  1. To register and regulate the real estate projects and real estate agents.
  2. To publish & maintain a website of records for public viewing of all real estate projects.
  3. To maintain a database on its website regarding the names and photograph of promoters who had defaulted in the project for public viewing.
  4. To maintain a database on its website regarding the names and photographs of real estate agents whose registration has been accepted or rejected.
  5. To fix the rules under its jurisdiction the standard fees to be levied on promoters, agents, or allottees.
  6. To ensure the compliance of the obligations cast upon the promoters, real estate agents and allottees.
  7. To ensure compliance of its rules and regulations made in exercise of its powers.
  8. To perform such other function entrusted by the appropriate government.

Powers of Authority:

  1. To call upon any promoter, allottee or agent at any time to furnish in writing such information relating to its affairs for conducting investigation.
  2. To order or restrain any promoter, allottee or real estate agent from carrying on such act until the conclusion of such inquiry or until further orders.
  3. To issue directions to promoter, allottee or real estate agent from time to time.
  4. To impose penalty or interest in regard to contravention of any obligation cast upon promoter, allottee and the real estate agents.
  5. Have the same powers as are vested in civil court under Code of Civil Procedure 1908 while trying suit:
    1. The discovery and production of books of account and other documents, at such place and at such time as may be specified by the Authority.
    2. Summoning and enforcing the attendance of persons and examining them on oath.
    3. Issuing commissions for the examination of witnesses or documents.
  6. To rectify its mistake apparent from the record passed an order under this Act or amend any order if the mistake is brough in notice by the parties, within a period of 2 years
  7. To recover interest, penalty or compensation from allottee, agent or promoter on their failure to pay any interest or penalty or compensation imposed.

Real Estate Appellate Tribunal8:

Within one year of the coming of this Act, the appropriate government by notification establish an Appellate Tribunal known as Real Estate Appellate Tribunal. The appropriate Government may establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory or single appellate tribunal for 2 or more states or Union Territory. Each bench consists of at-least one Judicial member and one Technical or Administrative member. Any person aggrieved by the order of Authority may prefer an appeal before the Appellate Tribunal.

Settlement of disputes & Appeal to Appellate Tribunal9:

  • Any person or appropriate government aggrieved by the order of Authority or Adjudicating officer may prefer an appeal to Appellate Tribunal.
  • Within the period of 60 days, person or appropriate government aggrieved by such order or decision of Authority or Adjudicating Officer should prefer an appeal to the Appellate Tribunal accompanied by fees as prescribed.
  • After hearing both the parties Appellate Tribunal may pass an order or interim order as it thinks fit.
  • Appellate Tribunal will send a copy of every order made by it to each of the party and to the Authority or Adjudicating officer.
  • Appeal should be disposed of quickly within a period of 60 days from the date of receipt of appeal.

Any person aggrieved by the order or decision of Appellate Tribunal may prefer an appeal to High Court within a period of 60 days.

Composition10:

It consists of a chairperson and not less than 2 whole time members of which one should be a Judicial member and other should be a Technical or Administrative Member appointed by the appropriate Government.

Qualification11:

A person to qualify for the post of Chairperson or Member of the Appellate Tribunal should possess:

  1. In case of Chairperson, is or has been a Judge of a High Court.
  2. In case of a Judicial Member, he has held a judicial office in the territory of India for at least fifteen years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters.
  3. In case of a Technical or Administrative Member, he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or who has held the post in the Central Government or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government.
  4. Chairperson of Appellate Tribunal is appointed by the appropriate government in consultation with Chief Justice of High Court or his nominee.
  5. The Judicial Members and Technical or Administrative Members of the Appellate Tribunal is appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department handling Housing and the Law Secretary.

Term12:

The Chairperson and the Member of the Appellate Tribunal hold the office for a term:

  • Not exceeding 5 years from the date on which they enter in the office.
  • Not eligible for re-appointment.

Appropriate Authority before appointing such person has to check that they should not have any financial or other interest which is likely to affect prejudicially his functions as such member. Provided that a person who has been a Judge of High Court and has been appointed as Chairperson of Appellate Tribunal shall not hold the office after the age of 65 years and no Judicial Member or Technical Member will hold the office after attaining the age of 65 years.

Disqualification of Chairperson and Member of Appellate Tribunal13:

The appropriate government in consultation with Chief Justice of High Court may remove the Chairperson or other Members from the office where they have been:

  1. Adjudged as an Insolvent.
  2. Convicted of an offence involving, moral turpitude.
  3. Physically or mentally incapable of acting as a member.
  4. Acquired such financial or other interest as is likely to affect prejudicially his functions.
  5. Abused his position as to render his continuance in office prejudicial to the public interest.

Powers of Appellate Tribunal14:

  1. To regulate its own procedures.
  2. Have the same powers as are vested in civil court under Code of Civil Procedure 1908 in respect of the following matters:
    1. To summon and enforce the attendance of any person and examining him on oath
    2. To require the discovery and production of documents
    3. To receive evidence on affidavits
    4. To issue commissions for the examinations of witnesses or documents
    5. To review its decisions
    6. To dismiss an application for default or directing it ex parte

Conclusion:

RERA Act has proved to be a boon for the real estate sector by providing protection to the buyers against malpractices or delay in projects by promoters or builders or real estate agents, thereby increasing the investment and confidence of people in the real estate sector. It can be said that the RERA Act is well on its way to fulfill the motive of quick remedy with the establishment of the Real Estate Regulatory Authority and the Real Estate Appellate Tribunal under the RERA Act. The Tribunals have been successful in providing relief to the aggrieved buyers in numerous occasions, whereby the real estate agents have misrepresented or defrauded them on pretext of legitimacy and took major amount of money in the form of advance for the project.

Footnotes

1. Sec 20 of RERA Act, 2016

2. Sec 21

3. Sec 22

4. Sec 23

5. Sec 26

6. Sec 29

7. Sec 34

8. Sec 43

9. Sec 44

10. Sec 45

11. Sec 46

12. Sec 47

13. Sec 49

14. Sec 53

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.