S.S. Sandhu, Member (J)

1. Order dated 01.02.2019 passed by leaned AO of MahaRERA in the above complaint filed by Respondent is challenged in this Appeal.

2. Appellant and Respondent are Promoter and Allottee respectively and will be referred accordingly in this order.

3. As per brief facts of the matter it is seen that Allottee booked 3 flats in building No. G-1 in Promoter's project and paid total amount of Rs. 11,15,712/-. According to Allottee Promoter orally promised to give possession by June 2017 or at the most by December 2017. Promoter issued letter of Allottee which neither mentioned date of possession nor stage wise payment schedule. Alleging failure in possession within the prescribed period which was now disclosed as 2021 on MahaRERA website on registration of the project, Allottee vide his letter dated 09.01.2018 conveyed cancellation of booking of flat and declined to make further payments. Vide letter dated 03.08.2018 sent through his advocate, Allottee sought refund of the amount with interest. Later Allottee filed Complaint with Authority on 11.09.2018 seeking inter alia refund of the amount paid with interest in terms of Section 11(3)(b), 12, 13 and 18 of RERA. Order passed by learned AO is sought to be impugned by Promoter in this Appeal.

4. Parties are heard through their learned counsel.

5. At the outset, learned counsel for Promoter contended that AO, who passed the impugned order, has no jurisdiction to decide Complaint claiming refund with interest To support his contention, he relied upon the judgment of this Tribunal in the case of Pankaj Agarwal & Ors. Vs. Real Gem Pvt. Ltd. decide on 31.08.2020 holding that AO has jurisdiction to decide compensation only and the reliefs pertaining to refund of amount with interest as sought by Allottee in his Complaint can be decided only by the Authority.

On merits learned counsel for Promoter contended inter alia as follows:

(i) Allottee was issued Letter of Allotment (LOA) in December, 2015 and at the time of booking he was orally informed that possession will be handed over in 2021 as declared by Promoter on MahaRERA portal. Promoter never committed for possession in June/December 2017.

(ii) As per clause 10(b) of LOA, Allottee agreed to forfeiting 10% amount in case of cancellation of flat by Allottee. In view of cancellation of flat by Allottee himself, Promoter is entitled and ready to refund the balance amount after forfeiting 10% amount of the total consideration.

(iii) Allegation of change in amenities is baseless and not supported by any document. It is evident from letter dated 09.01.2018 that Allottee has sought to cancel the flat only due to delayed possession. No mention of change in amenities is made therein as contended later on by Allottee.

(iv) Learned AO failed to take cognisance of the aforesaid contentions and therefore order is liable to be quashed and set-aside.

6. Per contra, learned counsel for Allottee submitted that Promoter violated several provisions of RERA. He argued that no date of possession was mentioned in allotment letter. He also submitted that sales team of Promoter had promised to give possession by June 2017 or maximum by December, 2017. He submitted that Authority in its another order in Complaint No. CC006000000022655 has granted interest from July, 2018 by holding that assured date of possession was June, 2018. He further contended that Promoter failed to give amenities as represented in the brochure of the project. It is also contended that that in view of delay in possession and breach of provisions of RERA, Allottee is entitled for refund with interest and without any forfeiture of 10 % amount as contended by Promoter. He therefore sought to dismiss the Appeal.

7. After considering submissions of the parties and perusal of impugned order and other documents on record, the point for our consideration and determination is as to whether the impugned order is sustainable as per law. Our answer to the point is in the negative for the following reasons.

8. After having considered rival submissions advanced by the parties, admittedly complaint of Allottee seeking refund with interest along with other reliefs is dealt with and decided by AO. Accordingly, vide impugned order learned AO has directed Promoter to refund the amount with interest and costs. Relying upon the judgment dated 31.08.2020 of this Tribunal in the case of Pankaj K. Agarwal and Anr. (supra) Promoter has questioned the jurisdiction of the AO to entertain and decide the subject matter of complaint of Allottee and has sought to set aside the impugned order. Therefore, as the point of jurisdiction goes to the root of the order, sustainability of impugned order is to be accordingly decided first without going into merits of the case. It is pertinent to note that in view of the aforesaid judgment and previous judgments of this Tribunal in the cases of Sanvo Resorts Pvt. Ltd. Vs. Ranveer Sharma in Appeal No. AT006000000010751 and Mohit Melwani Vs. AA Estates Pvt. Ltd. (Appeal No. AT006000000010873) the position of law on jurisdiction of AO is no longer res integra. It may be noted that after examining relevant provisions of RERA in the case of Sanvo Resorts (supra), full Bench of this Tribunal has held as under:

"13. Coming to the challenge raised by Promoter to the jurisdiction of the Authority U/Sec., 18 it is quite evident from the opening wording of Section 71 of the Act that the very appointment of the Adjudicating Officer is for the purpose of adjudging 'compensation' under Sections 12, 14, 18 & 19 of the Act. This signifies that Adjudicating Officer is to adjudicate the element of compensation and while doing so he shall have due regard to various factors enumerated under Sec. 72 of the Act such as amount of disproportionate gain or unfair advantage, amount of loss etc. However, it may be seen that no such appreciation of any such factors or reasons is required or provided U/Sec. 18 of the Act for refund of the paid amount with interest....."

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15. Considering the above, the Adjudicating Officer U/Sec. 71 of the Act primarily has jurisdiction to decide the case where adjudication is required for awarding compensation and/or where interest being sought qua compensation falls under the sway of compensation. Where the refund of the paid amount is sought along with interest simpliciter and not by way of compensation per se, the Authority has necessary jurisdiction to deal with such claims U/Sec. 18 of the Act........."

9. The above view also finds expression in the observations made in para 16 of the order dated 08.11.2019 of this Tribunal in the case of Mohit Melwani (supra) wherein it is held that in a case where relief of refund with interest and compensation under Sections 12 and 18 of RERA is sought, the Authority is not required to send the complaint to AO for adjudging compensation in case no breach as alleged is found by the Authority for granting relief of refund and interest itself. Further, in the judgment relied upon by Promoter in the case of Pankaj K. Agarwal and Anr. Vs. Real Gem Buildtech Pvt. Ltd., this Tribunal after comprehensive examination of the specific issue of jurisdiction of the Authority vis-a-vis AO has held that the AO is appointed under Section 71 and 72 for the limited purpose of granting compensation only and does not have jurisdiction to decide any other issues including specific issue relating to grant of refund and interest for which jurisdiction is solely vested with the Authority.

10. The view taken as above by this Tribunal in the aforesaid cases is also supported by order dated 16.10.2020 passed by the Hon'ble Punjab Haryana High Court in CWP No. 38144 of 2018 and other connected matters. Relevant extracts from the aforesaid order evidencing position of law laid down by the Hon'ble High Court are reproduced as under:

"60. On a collective reading of Sections 71 and 72 of the Act, the legislative intent becomes explicit This is to limit the scope of the adjudicatory powers of the AO to determining compensation or interest in the event of violation of Sections 12, 14, 18 and 19 of the Act. To recapitulate, the question of compensation arises only in relation to the failure of the promoter to discharge his obligations. Therefore, in a complaint for compensation or interest in terms of Section 71 of the Act, the complainant would be the allottee and the Respondent would be the promoter. However, the powers of the Authority to inquire into complaints are wider in scope. As is plain from Section 31 of the Act, a complaint before the Authority can be against "any promoter/allottee, real estate agent, as the case may be." It is, therefore, not correct to equate the adjudicatory powers of the Authority with that of the AO as they operate in different spheres. Even vis-a-vis the promoter, complaints seeking reliefs other than compensation or interest in terms of Section 71 read with Section 72 of the Act, the powers of adjudication are vested only with the Authority and not with the AO. The submission that since disputes under the Act would involve determining if the clauses of an agreement of sale have been complied with by either party and that such a 'lis' can be adjudged only by the AO, is also not acceptable. There is no reason why the Authority cannot examine such a question if it were to arise for determination in a complaint before it. In any event, the Authority's decisions are amenable to judicial review in two further appeals, once by the Appellate Tribunal and, thereafter, by the High Court.

61. Consequently, the plea of the Petitioners that the power and scope of the functions of the Authority are limited to determining penalty or interest under Section 38 of the Act is rejected as it overlooks the wide range of powers of the Authority on a collective reading of Sections 31, 34 (f), Sections 35, 36 and 37. In fact, the power to issue interim orders under Section 36 of the Act and the power to issue directions under Section 37 of the Act are not made available to the AO under Section 71 of the Act.

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63. Although, the Act does use distinct expressions like 'refund', 'interest', 'penalty' and 'compensation', a collective reading of the 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 This Court finds merit in the contention on behalf of the Respondents that the expression 'interest' as used in Section 18 of the Act is a pre-determined rate, as may be fixed by the government, and is distinct from the interest by way of compensation that has to be computed by the AO in terms of Section 71 (3) keeping in view the factors outlined in Section 72 of the Act. When it comes to the 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.

64. The submission on behalf of the Petitioners that the word 'quantum' is not used in Section 71 of the Act and, therefore, the AO has the powers beyond adjudging compensation, is again based on an improper understanding of the scope of those powers. If Sections 71 and 72 of the Act are read together, it is plain that the AO has to adjudge the 'quantum of compensation'.

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66. It was repeatedly urged by the counsel for the Petitioners that the Authority and the AO can come to different conclusions on the same question, viz., whether there has been a violation of provisions of Sections 12, 14, 18 and 19 of the Act by the promoter. This again appears to the Court to be based on an erroneous understanding of the scheme of the Act. If a complainant is seeking only compensation or interest by way of compensation simpliciter with no other relief, then obviously the complainant would straightway file a complaint before the AO. The complaint will be filed in form CAO and will be referable to Rule 29 of the Haryana Rules. The AO in such instance would proceed to determine whether there is a violation of Sections 12, 14, 18 and 19 of the Act. Therefore, the question of any inconsistent order being passed by the Authority in such instance would not arise.

67. The second scenario is that a single complaint is filed seeking a combination of reliefs with one of the reliefs being relief of compensation and payment of interest. In such instance, the complaint will first be examined by the Authority which will determine if there is a violation of the provisions of the Act. If such complaint is by the allottee and against the promoter and if the Authority comes to an affirmative conclusion regarding the violations it will then, for the limited purpose of adjudging the quantum of compensation or interest by way of compensation, refer the complaint for that limited purpose to the AO. With the Authority already having found in favour of the complainant as regards violation by the promoter of Sections 12, 14, 18 and 19 of the Act, clearly the AO will not further examine that question. The AO will only proceed to determine the quantum of compensation or interest keeping in view the factors outlined in Section 72 of the Act. In other words, the AO will act on the finding of the Authority on the question of violation of those provisions and not undertake a fresh exercise in that regard. This way the powers of the Authority under Section 31 read with Sections 35 to 37 of the Act will not overlap the functions of the AO under Section 71 of the Act. Both sets of provisions are, therefore, capable of being harmonized."

11. Considering the legal position discussed and held as above, it is crystal clear that AO has powers only to adjudge compensation under Sections 71 read with 72 of RERA and has no jurisdiction to decide matters for allowing refund with interest under Section 18 which is vested with the Authority only. Consequently, the order passed by AO with regard to subject matter involved in the above complaint is obviously without jurisdiction as per provisions of RERA. It is a fundamental principle well established that an order passed by a forum having no jurisdiction over subject matter is a nullity. An objection to its validity can be raised at any time including the appeal proceedings. For the said reasons, the impugned order passed by AO cannot be sustained and therefore is liable to be quashed and set aside being a nullity for lack of jurisdiction of subject matter as contended by Promoter. We answer the point accordingly.

12. In the above circumstances, it is appropriate to remand the complaint in question back to the Authority to be decided in accordance with settled position of law.

13. In the result, we pass the following order.

ORDER

i) Appeal is partly allowed.

ii) Impugned order dated 13.03.2019 passed by the AO is set aside.

iii) Complaint No. CC005000000022014 is remanded back to the Authority to be decided afresh in accordance with law. All contentions of the parties are kept open.

iv) Matter be expedited and decided finally in a time bound manner preferably within 3 months from the date of this order.

v) Parties to bear their own costs.

vi) Copy of this order be sent to the Authority and respective parties as per provisions of Section 44(4) of RERA.