Establishment and function of central advisory council and RERA tribunal

Establishment and function of central advisory council and RERA tribunal

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The Real Estate Regulatory Authority, is the administrative wing of the authority established under the RERA Act, is assisted in its functions by the Central Advisory Council (CAC) and the Appellate Tribunal. The latter two shall be the subject of this article. 

CENTRAL ADVISORY COUNCIL

The primary role of the CAC is that of an advisory body. This advisory body is tasked with the function of finding more effective means to ensure the efficient implementation of the RERA. 

Composition of the Council

The council is composed of a chairman and other members.  The Housing Minister of India is the ex officio chairman of the council.

The other members include representatives from the following departments-

  1. Ministry of Finance,
  2. Ministry of Industry and Commerce,
  3. Ministry of Urban Development,
  4. Ministry of Consumer Affairs,
  5. Ministry of Corporate Affairs,
  6. Ministry of Law and Justice,
  7. Niti Aayog,
  8. National Housing Bank,
  9. Housing and Urban Development Corporation,
  10. Five representatives of State Governments to be selected on a rotational basis, (Presently, the State Governments whose representatives are part of this CAC hail from the following States: Assam, Karnataka, Gujarat, Maharashtra and Madhya Pradesh)
  11. Five representatives of the Real Estate Regulatory Authorities to be selected on a rotational basis, and
  12. Any other Central department as notified by the Government.

For the fair representation of the homebuyers, the Government has also included the president of the Forum for People’s Collective Efforts and the chairman of the Federation of Apartment Owners’ Association[1]. This ensures the fair representation of the homebuyers in the Council as well. This also ensures that the CAC is not just a bureaucratic body but a participatory one in its representation. The first meeting of the CAC was held on May 14, 2018[2].

Functions of the Council 

The Central Advisory Council is a purely advisory body, having no administrative functions, which has been established to recommend how the Act can be better implemented in reality. The main objectives of the council can, therefore, be categorized as being the following,

  1. Implementation, 
  2. The policy which the government has to follow to encourage the Act, 
  3. how the Act is to further consumer interests, 
  4. how the Act should help foster growth in the real estate sector and other matters as assigned to the Central Government.

Being an advisory body, the Centre may take into consideration their recommendations and may make rules to bring these recommendations to effect.

Analysis of the effectiveness of the Council 

The Central Advisory Council is tasked with the important task of anticipating and increasing the efficiency of the implementation of the RERA. More importantly, the council must work towards increasing the health of the real estate sector, an important contributor to the GDP of the country. While it has set to do so, the following areas must be carefully looked into to propel this council to make an impactful change,

Keeping up the Federal Spirit 

To increase the effectiveness of this council, representation of all the States is essential, so as to also avoid leaving behind any area. As it stands, the council is represented by 5 states which are selected on a rotational basis. This takes away the opportunity of the rest of the states to voice their opinions. The representation should not only include those States which are already faring well in the real estate sector but also those States which are not faring that well in the real estate business but do have the potential. The representation of the States should thus be extended to 10-15 States at the least.

Representation of environmental concerns 

Environmental concerns should well be represented on the CAC as consumer interests are not limited to only to money in real estate. The interest of the consumers also lies in environmentally sustainable models which need to be followed by the real estate promoters as well. This will also encourage promoters to go green and use green alternatives while undertaking such projects as the CAC may help in highlighting the best practices in real estate projects. It will thus benefit both the promoters and the consumers.   

Lesser departmentalization of the CAC 

It is important the CAC is not reduced to just another department of the Government which has lesser powers and is acting as a toothless tiger.

Regularize interactions

To prevent the RERA in turning into a ‘paper tiger’, it is important that the meetings are more regular. This will prevent further dilutions to the RERA as well. The last meeting was concluded on May 18, 2018[3]. It thus becomes important that rules be made to make the meetings compulsory at least once a year. Representations only work when there is regular interaction.  

REAL ESTATE APPELLATE TRIBUNAL  

The next body which is mandated to be established under the Act is the Real Estate Tribunal. It is contained under Chapter VII of the RERA, 2016. The relevant provisions relating to the Real Estate Tribunal have been provided as follows-

Establishment of the Tribunal

This has been provided under Section 43 of the Act. The appropriate Government is to establish this within 1 year of the commencement of the Act through an official notification.

The Appropriate Government also has the powers to set up benches for various jurisdictions within the concerned States and Union Territories if such a need arises.  

These benches need to have 1 judicial member and 1 Administrative/Technical member.

Single Appellate Tribunal for two or more States or Union Territories can also be established under the Act as well. Till the establishment of such tribunal, the designated tribunal may hear the cases and once the same has been established, all the pending cases will stand transferred to the newly established common Tribunal.

Any person who is aggrieved by the order given by the Authority may file an appeal before the Appellate Tribunal. In case the appeal is filed on behalf of a promoter,  the promoter has to deposit 30% of the penalty to the Appellate Tribunal or more than the said percentage as ordered by the Appellate Tribunal. This may also include the total compensation with interest to be paid to the allottee.

Application of Appeal

The application is to be filed within 60 days from the said order or direction by the Real Estate Regulatory Authority. If sufficient reason for the delay in presenting the appeal exists, the time limit may be extended. Once the application is accepted, both sides are to be heard and the cases have to be dealt expeditiously (within the 60 day period from the date of receipt of the application of appeal).  

Power of the Tribunal to call for records

The Appellate Tribunal has the power to call for records of the Authority to duly depose the appeals.  

Composition and qualification of the said members of the Tribunal

There is to be one Chairperson and two members: 1) Judicial Member and 2) Technical Members. They are to be duly appointed by the Appropriate Government.

The qualifications of the said Chairman and members of the Appellate Tribunal have been provided under Section 46 of the Act as follows-  

Qualifications of the Chairperson

She/he has been a Judge of any High Court. She/he is to be duly appointed after consultations with the Chief Justice of the High Court or his/her nominee.

Judicial member

She/he has held a judicial office in the territory of India for 15 years or,

She/he has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post or,

She/he has been an advocate for at least 20 years with experience in dealing with real estate matters.

Technical or Administrative member

She/he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or,

Who has held the post in the Central Government or,

A State Government equivalent to the post of Additional Secretary to the Government of India or,  

She/he has held an equivalent post in the Central Government or an equivalent post in the State Government.   

Appointment of the members has to be done by a Select Committee

 The Judicial Members and Technical or Administrative Members of the Appellate Tribunal are appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department handling Housing and the Law Secretary. 

The Act also provides for other provisions like the term of office of the Chairperson and the members of the Tribunal, vacancies, removal of the members and the restrictions which have been imposed after cessation of the office in the Appellate Tribunal. 

Powers of the Tribunal[4]

The Tribunal is not bound by the strict procedures provided by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872. It is to be guided by the principles of natural justice. It also has the power to regulate its own procedures.

For discharging of the functions under this Act, powers of the Civil Court are entrusted in the Tribunal. This will include the following-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examinations of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or directing it ex parte; and

(g) any other matter which may be prescribed.

Chairperson has administrative powers under the Act[5]- He has been provided powers of general superintendence and direction while she/he conducts the affairs of the Appellate Tribunal.  

All the orders passed by the Tribunal are to be executed as a decree of a Civil Court[6]. In this case, all the powers under Order XXIII of the Code of Civil Procedure, 1908 can be followed as the Tribunal has been given powers of a civil court.

Role of High Courts[7]: 

In the end, all the appeals from the Appellate Tribunal lay before the High Court of the respective States. This is to be done within 60 days from the communication of the decision or order of the Appellate on any of the grounds provided under Section 100 of the Code of Civil Procedure, 1908. If the decision has been given with the consent of the parties, no appeal lies in such cases.  

Analysis of the establishment of the Tribunals

There have been certain areas which need focus when it comes to the establishment of the Appellate Tribunals and the related works. These are as follows-

Not all States and Union Territories in India have established the Real Estate Appellate Tribunals in India. In total 22 States have established Appellate Tribunals out of which 13 are permanent and 9 interims [8]. For better implementation of the Act and lesser burden on the District Courts, it is of utmost importance that the States establish permanent Authorities and Appellate Tribunals.  

Ensure that the Appellate Tribunal has the composition according to the Act- This has been highlighted in a PIL filed before the Gujarat High Court[9]. It was termed as ‘coram non-judice’ as the Appellate Tribunal did not have any technical members. It is important that technical members be appointed as real estate sector requires specialized knowledge which may not be possessed by judicial members. Real Estate is a valuable asset to the country. If the Tribunal itself is bureaucratized, the objective of the Act is defeated. There were other issues raised too, like the Appellate Tribunal failing to provide information about the number of appeals filed, pending appeals etc.

For ensuring that the RERA is not diluted further, it should be ensured that the institutions involved are given autonomy to function properly and there is the prevention of further bureaucratization in the institutions. Such important aspects like vacancies not being filled or appointments not being made only hinder the institutions and contribute to the defeat of the Act.


[i] Section 41, RERA,2016.

[ii]//economictimes.indiatimes.com/articleshow/62074448.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst <as accessed on 5-1-2020>

[iii] http://mohua.gov.in/cms/about-cac.php <as accessed on 5-1-2020>

[iv] https://www.moneycontrol.com/news/business/real-estate/rera-a-paper-tiger-due-to-lack-of-enforcement-of-orders-passed-by-authorities-allege-homebuyers-4167251.html <as accessed on 5-1-2020>

[v] Section 53, RERA 2016.

[vi] Section 54, RERA 2016.

[vii] Section 57, RERA 2016.

[viii] Section 58, RERA 2016.

[ix] https://credai.org/assets/upload/rera/resources/real-estate-regulation–development-act-2016-rera-implementation-progress-report—24-08-2019.pdf <as accessed on 5-1-2020>.

[x] https://www.livelaw.in/news-updates/guj-hc-issues-notice-on-pil-challenging-coram-of-gujarat-real-estate-appellate-tribunal-151186 <as accessed on 5-1-2020>


Pooja Ghosh Law Circa Intern

Pooja Ghosh

Author

Pooja hails from Uttaranchal University, Dehradun, and she spends most of her time in Reading, debating, writing articles and poetry. Her Interest area lies in laws for Real estate and contemporary laws. For any clarifications, feedback, and advice, you can reach her at editor@lawcirca.com

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