Sumant Kolhe, Member (J)

1. Legality, propriety and correctness of the order dated 28th February, 2019 passed by Adjudicating Officer in Complaint No. CC006000000044073 is challenged in this Appeal.

2. Facts of the Appeal are as under:

Complaint was filed by Appellants (Allottees) against Respondent (Promoter). Parties will be referred as per their status of Allottees and Promoter. Impugned order passed by Adjudicating Officer in the Complaint is as under:

1. The Complainants are allowed to withdraw from the project.

2. The respondent to pay Rs. 42,51,500/- to the Complainant except stamp duty which can be refunded as per rules and subject to the charge of the Financer together with interest @ 10.70% p.a. from the date of receipt of payments till final realisation.

3. The respondent to pay Rs. 20,000/- to the complainant as costs of this complainant + Rs. 5,000/- costs imposed on 20.12.2018.

4. The Complainant to execute cancellation Deed at the cost of the respondent.

5. The respondent to pay the above amounts within 30 days from the date of this order.

3. Feeling aggrieved, Allottees have preferred this Appeal. Heard learned counsel for both the sides.

4. Following points arise for our determination.

POINTS

i) Whether impugned order is sustainable under the law

ii) What order

5. Our findings on the above points for the reasons stated below are as under.

FINDINGS

i) Negative.

ii) Appeal is allowed and Complaint is remanded back to MahaRERA.

REASONS

6. In the Complaint filed under Section 18 of RERA Allottees had prayed for possession of the flat along with interest for delay in handing over possession and compensation. Inquiry in respect of the Complaint was conducted and impugned order is passed by Adjudicating Officer.

Adjudicating Officer is appointed under Section 71 of RERA for limited purpose of adjudicating compensation under Section 12, 14, 18 and 19 of RERA considering the factors laid down under Section 72 of RERA. So, jurisdiction conferred on Adjudicating Officer under Section 71 of RERA is only to decide the compensation under Section 12, 14, 18 and 19 of RERA. Jurisdiction to adjudicate any other type of dispute relating to registration of the project, execution of agreement for sale, refund of the paid amount with interest to an Allottee on withdrawal from the project, handing over possession and formation of Co-operative Housing Society etc. arising out of provisions of RERA is with the Authority.

7. This Tribunal has inter alia held in Appeal No. AT006000000000159 Manoj Vatovat V/s. Sea Princess Realty & Ors. decided on 14th February 2019, Appeal No. AT006000000010751 Sanvo Resorts Pvt. Ltd. V/s. Ranveer Sharma & Anr. decided on 19th July, 2019 and Appeal No. AT006000000052542 Pankaj Agarwal V/s. Real Gem Buildtech decided on 31st August, 2020 that-

"The Adjudicating Officer is having jurisdiction to adjudicate only the compensation under Section 12, 14, 18 and 19 of RERA as envisaged under Section 71 r/w Section 72 of RERA and all other issues except compensation are held to be within jurisdiction of the Authority."

8. In CWP No. 38144/2018 and other connected matters (Experion Developers Pvt. Ltd. Vs. State Union & Ors.) decided on 16th October, 2020, on the point of jurisdiction of Adjudicating Officer, their lordship of the Hon'ble Punjab and Haryana High Court have laid down as under:

"A collective reading of provisions makes it apparent that when it comes to refund of the amount, and interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the Authority which has the power to examine and determine the outcome of a complaint. When it comes to question of seeking the relief of compensation or interest by way of compensation, the AO alone has the power to determine it on a collective reading of Sections 71 and 72 of the Act."

9. Order passed without jurisdiction over subject matter or order passed lacking inherent jurisdiction is nullity and ab initio void. Subject matter of the dispute involved in the Complaint was pertaining to recovery of possession and recovery of interest. Adjudicating Officer is having no jurisdiction over the subject matter of recovery of possession and recovery of interest for delayed period of possession.

On the point of lacking of inherent jurisdiction, the Hon'ble Apex Court has laid down the following principle in S.K. Pandit Vs. Shrikrishna Swami Devaswom that-

"A Decree passed by the court having inherent lack of jurisdiction over the subject matter is nullity and Incapable not only of execution but also producing any legal result"

10. Impugned order is passed by Adjudicating Officer having inherent lack of jurisdiction over the subject matter is nullity. It is not sustainable under the law and hence liable to set-aside.

11. In the above circumstances, it is just and proper to remand the matter to the Authority for allotting the same to such adjudicating mechanism established under RERA having jurisdiction over subject matter to decide the dispute involved in this matter. So, we answer point Nos. 1 & 2 accordingly and pass the following order.

ORDER

1.) Appeal No. AT006000000021277 stands disposed of with directions as follows:

i) Impugned order dated 28th February, 2019 passed by Adjudicating Officer in Complaint No. CC006000000044073 is set-aside.

ii) Complaint No. CC006000000044073 is remanded back to the Authority to be decided afresh. All contentions of the parties are kept open.

iii) Parties to appear before the Authority on 16.03.2021. The Authority to expedite and decide the matter finally in a time bound manner preferably within 3 months from the date of first appearance of the parties.

2.) Registry shall inform MahaRERA to give the link to both the parties for participating in video conference on 16.03.2021 before MahaRERA and submit compliance report to this Tribunal.

3.) Parties to bear their own costs.

4.) Copy of this order be sent to both the parties and MahaRERA as per Section 44(4) of RERA.