The Punjab and Haryana High Court has observed that a homebuyer can pursue the remedies under the Real Estate(Regulation and Development) Act, 2016 and the Consumer Protection Act simultaneously.
A division bench of Justices Dr S Mularidhar and Avneesh Jhangan held that it is not mandatory that a person, whose complaint is pending before the Consumer Forum, should have it transferred to the Adjudicating Officer under the RERA.
The Court noted that the proviso to Section 71(1) is an enabling proviso, which enables a person whose complaint is pending in the consumer fora under the CPA to opt to withdraw such complaints to go before the AO. This has to be read along with Section 88 of the RERA, which states that the provisions of the Act are "in addition to, and not in derogation of, the provisions of any other law for the time being in force."
"As far as the proviso to Section 71 (1) of the Act is concerned, it is an enabling provision. It enables a person whose complaint is pending in the consumer fora under the CPA to opt to withdraw such complaints to go before the AO. However, this has to be read along with Section 88 of the Act, which clearly states that "the provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force." It is, therefore, not mandatory for a person, who has a complaint before the consumer fora to have his complaint transferred to the AO. He can pursue both the remedies simultaneously on the strength of Section 88 of the Act".
The Court however clarified that if a complaint before the Consumer Forum is withdrawn and presented before the AO, the scope of the relief would be limited to the compensation or interest.
"If, however, such person opts to withdraw his complaint before the consumer fora to come to the AO, the scope of the relief he seeks would be limited to the compensation or interest. He will, therefore, have to take a conscious decision. If the relief he is seeking in the complaint before the consumer fora is in addition to seeking compensation or interest in the form of compensation, for instance refund of the amount and interest thereon, then he will have to take a conscious decision on restricting his relief before the AO to one of compensation or interest by way of compensation. For the remaining reliefs, he will have to go before the Authority".
The Court made these observations while clarifying the scope of powers of the AO and the RERA Authority.
The bench was considering a bunch of petitions challenging the condition of pre-deposit under the RERA and certain provisions of the Haryana Rules relating to the role of AO, which were ultimately upheld by it.
It may be noted that the National Consumer Dispute Redressal Comisssion has held that the remedies under RERA and Consumer Protection Act are simultaneous. The Delhi High Court upheld this decision of NCDRC(MRM India Pvt Ltd and another v Dr Dinesh Sharma and another).