The power to adjudicate compensation under the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as the RER Act for the sake of brevity) is contained under Ss. 71 and 72 of the RER Act. Compensation can be adjudicated for violation of Ss. 12, 14, 18 and 19 of the RER Act.
The compensation is adjudged by the adjudicating officer who is or has been a District Judge. If a complaint is pending before any Consumer Commission/Forum then the complaint can be withdrawn from that forum and a complaint for adjudication can be filed before the adjudicating officer. S. 12 pertains to the veracity of the advertisements published by the developer, S. 14 deals with adherence to sanctioned plans of a real estate project, S. 18 deals with return of amount and compensation and S. 19 pertains to the rights and duties of allottees. Thus, if any violation is committed in this regard then a complaint before the adjudicating officer can be filed by an aggrieved person.
Adjudging compensation has to be done within 60 days from the date of receipt of the application. However, if such adjudication is not done within the stipulated period then reasons have to be recorded to that effect. Keeping in mind the pendency of cases and the lack of personnel/infrastructure the provision of disposing off a case within 60 days does not seem pragmatic.
The adjudicating officer has the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to direct to produce any document which would be relevant to the case in hand. These provisions are the same as provided under the Civil Procedure Code, 1908. If the adjudicating officer is satisfied that any of the provisions namely Ss. 12, 14, 18 or 19 has been violated then the officer can direct the guilty party to pay such compensation which is in line with the provisions of the RER Act.
S. 72 delineates the factors which are to be taken into account by adjudicating officer while adjudging compensation. These factors are:-
(i) The amount of disproportionate gain or unfair advantage wherever quantifiable as a result of the default. The main word in this provision is “quantifiable” as compensation can only be granted if the gain or unfair advantage is certain and can be expressed in monetary terms.
(ii) The amount of loss caused as a result of the default.
(iii) The repetitive nature of the default. This provision tries to encapsulate and determine whether the defaults are frequent or are a result of some genuine impediments which would deter a person from discharging his obligations.
(iv) Such other factors which the adjudicating officer considers necessary to the case in furtherance of justice. This provision or factor provides for the principle of equity in granting remedy where an express provision of law is absent.
The procedure of adjudging compensation is contained in Rule 7 of the Maharashtra Real Estate (Regulation and Development) (Recovery of Interest, Penalty, Compensation, Fine Payable, Forms of Complaints and Appeal, Etc) Rules, 2017 (hereinafter referred to as the Rules, 2017). To briefly summarize the procedure of adjudication as provided in the Rules, 2017 firstly the notice of the application is given to the respondent and a date and time would be fixed for hearing. On the date of hearing the adjudicating officer shall explain the contravention of the provisions to the respondent and the respondent would be required to either plead “guilty” or “not guilty”. If the respondent pleads “guilty” then the adjudicating officer shall record the plea and adjudicate compensation thereafter. If the respondent pleads “not guilty” then the respondent shall tender the explanation to his plea.
If the adjudicating officer is satisfied with the explanation of the respondent then it may dismiss the complaint. If the officer feels that there is need for more inquiry then it may fix a suitable date for such hearing and ask the parties to produce relevant documents and evidence. On the basis of the evidence adduced the officer can either hold the respondent in contravention of the provisions of the RER Act and the Rules, 2017 or it can dismiss the complaint if the respondent is not in contravention of the provision of the Act and the Rules. If the respondent is guilty of contravention then compensation shall be adjudged in accordance with the RER Act and the Rules, 2017 and considering the factors as enumerated in S. 72 of the RER Act.
In case of absence of any party during the course of hearing the adjudicating officer has the power to proceed ex-parte.
Thus, this briefly summarizes the power and procedure of adjudication of compensation as provided in the RER Act.