MahaRERA's new delegation order has experts split

After it delegates power to secretary, some claim latter is administrative officer, and non-compliance matters can be heard only by RERA; others say decision in RERA Act ambit

MahaRERA has become the first quasi-judicial authority in the country to delegate its powers recently to its secretary, with the aim of assisting litigants, and to clear thousands of pending non-compliance of orders by developers/builders in the state.

However, this recent order has raised doubts in the minds of a few professionals practising in RERA, who claim the secretary is an administrative officer, and non-compliance matters can be heard only by RERA members. Experts, however, say MahaRERA is very much in its ambit to delegate powers in the larger interest of litigants, and is within the frame of the RERA Act.

Chartered Accountant Ramesh Prabhu said, "Once MahaRERA passes an order in favour of a litigant, the builder/developer has to refund the money with interest, and compensation within a time of 30 days or maximum 60 days, failing which, a warrant is normally issued by the adjudicating officer or the MahaRERA authority for non-compliance of the order."

Prabhu added, "Data shows that 12,963 complaints have been registered till date since MahaRERA came into existence over three years ago. MahaRERA has so far passed 8,845 orders [8,096 on registered projects and 749 on unregistered]. Thousands of orders passed [out of 8,845] might be pending for non-compliance at the developer's level."

Prabhu added, "Even if we assume that it is a general order issued by MahaRERA delegating its power to the secretary as per section 81 of the RERA Act, the moot question is in case a judicial order has to be passed, the powers for it lie with the regulatory authority. For instance, attaching of property, issuing of warrant, etc, where the secretary is not the regulatory authority."

'Back to RERA eventually'
Prabhu said, "A recent order by Punjab and Haryana High Court and by the Maharashtra Real Estate Appellate Tribunal, Mumbai, clearly states that Adjudicating Officers don't have powers to pass refund orders. So can MahaRERA pass their quasi-judicial power to the secretary? The secretary may hold a hearing for non-compliance of MahaRERA order, and legal points, if any, will again be referred to RERA authority."

Advocate Akash Menon, who had appeared in the above matter, said, "The RERA, by issuing the subject directive, has sought to delegate powers of enforcement that were hitherto exercised by the Authority/AO. While the directive is seemingly empowered by Section 81 that confers express powers of delegation, the question of whether such delegation is tantamount to an abdication of responsibility, especially when conferred on an administrative officer, is likely to be challenged before the HC."

Advocate Nilesh Gala, who practices in MahaRERA said, "The circular issued by MahaRERA to delegate the powers in non-compliance matters to the secretary of MahaRERA is contrary to law and provisions of the RERA Act."

'MahaRERA order is correct'
Advocate Godfrey Pimenta, who practices in MahaRERA, said, "The RERA order is crystal clear and provisions of section 81 of the RERA Act clearly state that the RERA authority is well within its power to delegate some of its functions."

Senior Advocate Vinod Sampat, founder president of Co-operative Societies Residents' Association, said, "As per the judgment delivered by the High Court of Punjab and Haryana at Chandigarh in Janta Land Promoters Pvt. Ltd. versus Union of India ltd. and others, the interpretation is that only non-compliance reliefs must be tackled. Additional or different reliefs have to come from the Authority or Adjudicating Officer."

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