Consumer Protection Act, 1986 – s.23 – Real Estate (Regulation and Development) Act, 2016 (RERA Act) – ss.18,79 and 88 – Applicability and effect of the RERA Act – A housing scheme was launched by appellant in 2011 – The respondentscomplainants had booked apartments – The appellant had executed Builder Buyer Agreement dated 30.11.2013 with each of the respondents – On 01.05.2016, the Real Estate (Regulation and Development) Act, 2016 came into force – A considerable amount was paid by the respondents for their booked apartments – However, even after four years there were no signs of the project getting completed – In 2017, the respondents filed consumer cases before the National Consumer Disputes Redressal Commission – The Commission concluded that the appellant was deficient in rendering service and all the complaints were allowed by granting relief of refund of the amounts deposited by each of the complainants with simple interest @ 9% p.a. from the respective dates of deposits with Rs. 50,000/- towards costs – Aggreived, the appellant filed appeal before the Supreme Court – The appellant contended that the respondents were not ‘consumers’ within the meaning of the Consumer Protection Act – Further, once the RERA Act, came into force all questions concerning the project including issues relating to construction and competition thereof, would be under the exclusive control and jurisdiction of the authorities under the RERA Act – The Commission, therefore, ought not to have entertained the consumer cases – Held: The Commission had concluded that; (i) all the complainants were ‘consumers’ within the meaning of the Act and that; (ii) there was delay on part of the appellant in completing the construction within time – The conclusions drawn by the National Commission were absolutely correct and do not call for any interference – As far as applicability and effect of the RERA Act is concerned, s.79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine – It is settled law that the proceedings before the National Commission are although judicial proceedings, but at the same time it is not a Civil Court within the meaning of the provisions of the CPC – Thus, s.79 of the RERA Act does not in any way bar the Commission or forum under the provisions of the Consumer Protection Act to entertain any complaint – Further, s.88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law – Also, s.18 itself specifies that the remedy under the said section is ‘without prejudice to any other remedy available’ – Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the Consumer Protection Act or file an application under the RERA Act – Therefore, all the respondents are entitled to execute the order passed by the Commission in their favour. Dismissing the appeals, the Court
HELD : 1. It has consistently been held by this Court that the remedies available under the provisions of the Consumer Protection Act, 1986 are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act. [Para 21][405-D-E]
2. Section 79 of the Real Estate (Regulation and Development) Act, 2016 bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. [Para 25][406-F-H]
3. On plain reading of Section 79 of the RERA Act, an allottee described in category (B), who does not fulfil the requirements of being a ‘consumer’, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called “consumers” within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act. [Para 26][407-A-B]
4. On the strength of the law so declared in Malay Kumar Ganguli vs. Sukumar Mukherjee, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint. [Para 27][407-C-E]
5. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant. Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available”. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act. [Para 28][407-E-H; 408-A-B]
6. This Court may now consider the effect of the registration of the Project under the RERA Act. In the present case the apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition no. (x) of the letter dated 17.11.2017, issued by the Haryana Authority regarding registration certificate, also entitles an allottee to withdraw from the project due to discontinuance of promoter’s business or promoter fails to give possession of the apartment/plot in accordance with the terms and condition for sale and makes promoter liable to return the amount with interest. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements and was rightly dealt with by the Commission. [Para 33][409-C-F]
Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs. and others (2004) 1 SCC 305 : [2003] 6 Suppl. SCR 659 ; National Seeds Corporation Limited vs.
M.
Madhusudhan Reddy and another (2012) 2 SCC 506 : [2012] 2 SCR 1065 ; Virender Jain vs. Alaknanda Cooperative Group Housing Society Limited and others (2013) 9 SCC 383 : [2013] 2 SCR 1058 ; Malay
Kumar Ganguli vs. Dr. Sukumar Mukherjee (2009) 9 SCC 221 : [2009] 13 SCR 1 ; Pioneer Urban Land and Infrastructure Limited and another vs. Union of India and another (2019) 8 SCC 416 : [2019] 10 SCR 381 – relied on.
Emaar MGF Ltd and anr. vs. Aftab Singh (2019) 12 SCC 751 : [2018] 14 SCR 791 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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