Real Estate (Regulation & Development) Act, 2016 – Economic, Business and Commercial Laws Important Questions

Real Estate (Regulation & Development) Act, 2016 – Economic, Business and Commercial Laws Important Questions

Question 1.
What are the objects of enacting the Real Estate (Regulation & Development) Act, 2016?
Answer:
Objects and reasons for which the Real Estate (Regulation & Development) Act, 2016 has been framed are

  • Ensure accountability towards allottees and protect their interest.
  • Infuse transparency, ensure fair play, and reduce frauds & delays.
  • Introduce professionalism and pan India standardization. ;
  • Establish symmetry of information between the promoter and allottee.
  • Impose certain responsibilities on both promoter and allottees.
  • Establish a regulatory oversight mechanism to enforce contracts.
  • Establish Fast-Track Dispute Resolution Mechanism.
  • Promote good governance in the sector which in turn would create investor confidence.

Question 2.
Write a short note on Advantages of the Real Estate (Regulation & Development) Act, 2016
Answer:
Advantages of the Real Estate Development & Regulation Act, 2016 are as follows:

  • Reduction in litigation
  • More transparency
  • Proper project planning
  • Timely completion of the projects
  • Better customer management
  • Increased Foreign Direct Investment (FDI)
  • Uniformity in definitions like carpet area, common areas

Question 3.
Explain the salient features of the Real Estate (Regulation & Development) Act, 2016. [Dec 2018 (3 Marks)]
Answer:
Salient features of the Real Estate (Regulation & Development) Act, 2016 are given below:

  • Establish the Real Estate Regulatory Authority for the regulation and promotion of the real estate sector.
  • Ensure sale of plot, apartment or building, or sale of real estate projects, in an efficient and transparent manner.
  • Protect the interest of consumers in the real estate sector.
  • Establish an adjudicating mechanism for speedy dispute redressal.
  • Regulates transactions between buyers and promoters of residential real estate projects.
  • Establishes state-level regulatory authorities called Real Estate Regulatory Authorities (RERAs).
  • Residential real estate projects, with some exceptions, need to be registered with RERAs.
  • Promoters cannot book or offer projects for sale without registering them. Real estate agents dealing in projects also need to register with RERAs.
  • The promoter must upload details of the project on the website of the RERA.
  • Amount collected from buyers for a project must be maintained in a separate bank account and must only be used for the construction of that project.
  • Right to legal representation on behalf of Client by Company Secretaries or Chartered Accountants or Cost Accountants or Legal Practitioners.
  • Imposes a stringent penalty on promoter & real estate agent.

Question 4.
Does the term ‘advertisement’ as defined in the Real Estate (Regulation & Development) Act, 2016 include solicitation by emails and SMS?
Answer:
Section 2(b) of the Real Estate (Regulation & Development) Act, 2016 “advertisement” means any document described or issued as advertisement through any medium and includes any notice, circular or other documents or publicity in any form, informing persons about a real estate project, or offering for sale of a plot, building or apartment or inviting persons to purchase in any manner such plot, building or apartment or to make advances or deposits for such purposes;

(b) Advertisement can be effected through any medium. ‘Advertisement includes solicitation by emails and SMS
(c) It must be adopted in ‘soliciting for sale.
(d) Example: Kumar Properties putting hoarding road aside in city about their new township is an advertisement.

Question 5.
Who is the ‘allottee’ as per the Real Estate (Regulation & Development) Act, 2016?
Answer:
As per Section 2(d) of the Real Estate (Regulation & Development) Act, 2016, Allottee in relation to a real estate project means:
(a) the person to whom a plot, apartment or building, has been allotted, sold (whether as freehold or leasehold), or otherwise transferred by the promoter
(b) the person who subsequently acquires the allotment through sale, transfer, or otherwise but
(c) Does not include: Allottee does not include a person to whom plot, apartment, or building is given on rent.

Question 6.
Distinguish between: Completion Certificate & Occupancy Certificate
Answer:
Following are the main points of distinctions between completion certificate & occupancy certificate:

Points Completion Certificate Occupancy Certificate
Meaning A completion certificate means a certificate issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan and specifications approved by the competent authority. Occupancy certificate means a certificate issued by the competent authority permitting occupation of any building which has provision for civic infrastructures such as water, sanitation, and electricity.
What it shows The completion certificate shows that the building construction is done as per the approved plan. Occupancy certificate shows that the building is ready to occupy as necessary facilities like water, lift, sanitation and electricity, etc. are made available by the builder.
Dependence A completion certificate is issued first, once the construction of the property is completed. After issuance of completion certificate and getting confirmation that necessary facilities are made available for occupancy by people occupancy certificate is issued.
Section It is defined in Section 2(q) of the Act. It is defined in Section 2(Zf) of the Act.

Question 7.
Examining the provisions of the Real Estate (Regulation & Development) Act, 2016, answer the following:
(i) Does the definition of ‘promoter’ include public bodies such as Development Authorities and Housing Boards?
Answer:
The Real Estate (Regulation & Development) Act, 2016 covers all bodies (private & public) which develop real estate projects for sale to the general public. Section 2(zk) defines the term ‘promoter’ which includes both private and public real estate promoters. Thus, both Development Authorities and the Housing Boards, when involved in the sale are covered under the Act.

(ii) Does the definition of ‘promoter’ include all promoters in case of joint development?
Answer:
As per the Explanation to Section 2(zk), where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sell apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified, under the Act or the rules and regulations made thereunder.

Question 8.
State the provisions relating to registration of real estate projects under the Real Estate (Regulation & Development) Act, 2016. What is the penalty for non-registration?
Answer:
(a) Prior registration of real estate project with Real Estate Regulatory Authority [Section 3(1)]: Every real estate project in any planning area requires prior approval of the Real Estate Regulatory Authority (RERA).

The promoter cannot advertise, market, book, sell or offer for sale, or invite persons to purchase any plot, apartment, or building in any real estate project unless prior approval is obtained from the RERA.

(b) Registration of project started before the commencement of the Act: Promoters of all ongoing projects which have not received completion certificate will need to register their project with the RERA within 3 months of commencement of the Act.

(c) Registration of projects developed beyond the planning area: Real estate project which are developed beyond the planning area but with the requisite permission of the local authority also needs registration if it is so specified by the RERA and all the provisions of the Act shall apply to such projects from that stage of registration.

(d) Registration of real estate projects to be developed in phases: Where the real estate project is to be developed in phases, every such phase shall be considered a standalone real estate project, and the promoter shall obtain registration under the Act for each phase separately.

(e) Punishment for non-registration [Section 59]: If any promoter contravenes the provisions of Section 3, he shall be liable to a penalty which may extend up to 10% of the estimated cost of the real estate project as x determined by the Authority.

If any promoter does not comply with the orders, decisions, or directions & or continues to violate the provisions of Section 3, he shall be punishable:

  • With imprisonment for a term which may extend up to 3 years or
  • With fine which may extend up to a further 10% of the estimated cost of the real estate project or
  • With both.

Question 9.
Which projects are exempt from the ambit of the Real Estate (Regulation & Development) Act, 2016?
Answer:
As per Section 3(2) of the Real Estate (Regulation & Development) Act, 2016, the following real estate projects are exempted from the ambit of the Act ie. to say such projects do not require registration.

  • Any real estate project in which the ‘area of land’ or the ‘number of apartments proposed to be developed does not exceed 500 square meters or 8 apartments respectively. However, the Appropriate Government may reduce the threshold below 500 square meters or 8 apartments.
  • Real estate project where the promoter has received completion certificates prior to commencement of the Act.
  • Real estate project relating to renovation or repair or re-development which does not involve marketing, advertising selling, or new allotment of any apartment, plot, or building, under the real estate project.

Question 10.
Can the period of registration granted to a real estate project by the Regulatory Authority be extended? What is the definition of Force Majeure?
Answer:
(a) General provision:

  1. The developer has to specify a timeline during which he will complete and handover the project to the buyer,
  2. If he fails to do so within the stated time, then there are rigorous provisions in the Act

(b) Extention Reason: As per Section 6 of the Real Estate (Regulation & Development) Act, 2016, in two situations the registration granted to a project can be extended:

  1. Extension of registration can be granted in case of force majeure,
  2. It can also be granted under reasonable circumstances, without the fault of the promoter,

(c) Maximum Extention: Extention shall not be more than a maximum period of 1 year.

(d) Force Majeure: Explanation to Section 6 has defined force majeure to mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project’.

(e) Opportunity of Being Heard: Application for extension of registration shall not be rejected unless the applicant has been given an opportunity of being heard in the matter

(f) Example: Lodha builder has constructed township which should be completed by December 2020 but due to Covid and lockdown project is not able to be completed on time and now Lodha Builders is applying to authority for extension of deadline u/s 6.

Question 11.
Can the registration of a real estate project be revoked?
Answer:
Section 7(1) of the Real Estate (Regulation & Development) Act, 2016,
(a) The Regulatory Authority on receipt of a complaint or Suo Motu or on the recommendation of the competent authority may revoke the registration granted to the promoter of real estate.

(b) Circumstance in which registration can be revoked: The Regulatory Authority can revoke registration in the following cases:

  • If the promoter makes default in any provisions of Act or the rules or the regulations made thereunder.
  • If the promoter violates any terms or conditions of the approval given by the competent authority.
  • If the promoter is involved in unfair practice or irregularities.

(c) NoticeAuthority has given to the promoter not less than thirty days’ notice, in writing, stating the grounds on which it is proposed to revoke the registration.

(d) No revocation but terms and conditions: The Authority may, instead of revoking the registration, permit it to remain in force subject to such further terms and conditions as it thinks fit. Terms and conditions shall be binding on the promoter.

Question 12.
Does the term ‘real estate agents as defined in the Real Estate (Regulation & Development) Act, 2016 include web-portals engaged in selling apartments or plots?
Answer:
Section 2(zm) of the Real Estate (Regulation & Development) Act, 2016:
(a) Any person, who negotiates or acts on behalf of one person in a transaction of transfer of his plot, apartment, or building, as the case may be, in a real estate project, by way of sale, with another person

(b) He transfer of a plot, apartment, or building, as the case may be, of any other person to any other person

(c) Receives remuneration or fees or any other charges for his services whether as a commission or otherwise and includes a person who introduces, through any medium

(d) It includes property dealers, brokers, middlemen by whatever name called.

(e) The term ‘real estate agents, which is a very broad and inclusive definition and covers all forms of agencies involved in the sale and purchase of projects, registered under the Act.

(f) Consequently, web portals engaged in selling plots or apartments are also covered and are required to comply with the duties and responsibilities as provided under the Act and Rules and Regulations made thereunder.

Question 13.
Write a short note on the Functions and obligations of real estate agents
Answer:
As per Section 10 of the Real Estate (Regulation & Development) Act, 2016, the following are the functions and obligations of real estate agent under the Act:

  • Registration: He should not offer his agency service in a real estate project being sold by the promoter in any planning area which is not registered with the Authority.
  • Records and Books: He should maintain and preserve prescribed books of account, records, and documents.
  • Fair Trade Practice: He should not involve himself in any unfair trade practice
    1. Making false statements orally or written or by the visible presentation
    2. Permitting the publication of advertisement whether in the newspaper or otherwise of services that are not intended to be offered.
  • Information: He has to give all the information and documents to the allottee at the time of booking of plot, apartment, or building.
  • Other Functions: He should discharge other prescribed functions and obligations.

Question 14.
What are the obligations of the promoter in respect of information contained in advertisement or prospectus issued by him for any real estate project under the Real Estate (Regulation & Development) Act, 2016?
Answer:
(a) Section 12: Obligation of the promoter in respect of information contained in advertisement or prospectus is dealt with in Section 12 of the Real Estate (Regulation & Development) Act, 2016

(b) Loss or Damage:

  1. Where any person makes an advance or a deposit on the basis of the information contained in the notice advertisement or prospectus, or on the basis of any model apartment, plot, or building
  2. He sustains any loss or damage by reason of any incorrect, false statement included
  3. He shall be compensated by the promoter in the manner as provided under the Act.

(c) Return entire investment:

  1. The person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, or the model apartment, plot, or building, intends to withdraw from the proposed project
  2. He shall be returned his entire investment along with interest at such rate as may be prescribed and the compensation in the manner provided under the Act.

(d) Example: ABC Co. Pvt. Ltd. (Builder) promised to provide a gym and swimming pool in the advertisement which they printed in the newspaper. Based on the facility Mr. Ramlal booked a flat worth ₹ 50,00,000. Later on,
he came to know that there will be no gym and swimming pool facility. Mr. Ramlal can claim compensation or also can cancel the booking and take back the entire amount along with investment.

Question 15.
Fast Construction Ltd. is a company engaged in various real estate projects. One of the projects of the company commenced at Delhi for which the necessary formalities like registration, approval from appropriate authorities are completed. The company started to accept the advances from the prospective buyers at 15% of the price of the plots located in the projects without entering into an agreement for sale. Decide whether the company has contravened any provisions of the Real Estate (Regulation & Development) Act, 2016?
Answer:
(a) Facts of Case: Fast Construction Ltd. is a company engaged in various real estate projects. One of the projects of the company commenced at Delhi for which the necessary formalities like registration, approval from appropriate authorities are completed. The company started to accept the advances from the prospective buyers at 15% of the price of the plots located in the projects without entering into an agreement for sale

(b) Provision:

  1. Section: Obligation of the promoter in case of transfer of real estate project to a third party is dealt with in Section 13 of the Real Estate (Regulation & Development) Act, 2016
  2. A promoter shall not accept a sum more than 10% of the cost of the apartment, plot, or building as an advance payment or an application fee, from a person without first entering into a written agreement for sale with such person.
  3. This provision will not affect the allotment or sale made by the promoter earlier

(c) Conclusion: As per facts given in the case, Fast Construction Ltd. is accepting more than 10% of the price of the plots without entering into an agreement for sale with a prospective buyer and thus company had contravened the provisions of the Real Estate (Regulation & Development) Act, 2016 and will be liable to penalty and punishment as provided in the Act.

Question 16.
What is the liability of the promoter of real estate in relation to structural defects under the Real Estate (Regulation & Development) Act, 2016?
Answer:
Dealt in Section 14(3) of the Real Estate (Regulation & Development) Act, 2016:
(a) Notice to Promoter: In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale is brought to the notice of the promoter
(b) Time Period: It should be intimated within a period of 5 years by the allottee from the date of handing over possession
(c) Promotor’s Duty: It shall be the duty of the promoter to rectify such defects without further charge, within 30 days.
(d) Failure to perform: In the event of the promoter’s failure to rectify structured defects within 30 days, the aggrieved allottees shall be entitled to receive appropriate compensation in a manner provided under the Act.

Question 17.
What are the rights of the allottees under the Real Estate (Regulation & Development) Act, 2016?
Answer:
Rights of allottees [Section 19]:
1. Right to obtain information relating to sanctioned plans, layout plans, etc.: The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority, and other information as per the Act or the agreement for sale signed with the promoter.

2. Right to know stage-wise time schedule of completion of the project: The allottee shall be entitled to know the stage-wise time schedule of completion of the project, including the provisions for water, sanitation, electricity, and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale.

3. Right to claim possession: The allottee shall be entitled to claim the possession of an apartment, plot, or building. The association of allottees shall be entitled to claim the possession of the common areas.

4. Right claim refund, interest, and compensation: The allottee shall be entitled to claim a refund with interest and compensation from the promoter if the promoter fails to comply or is unable to give possession of the apartment, plot, or building.

5. Right to have the necessary documents and plans: The allottee shall be entitled to have the necessary documents and plans, including that of common areas, after handing over the physical possession of the apartment or plot or building by the promoter.

Question 18.
What are the duties of the allottees under the Real Estate (Regulation & Development) Act, 2016?
Answer:
Duties of allottees [Section 19]:
1. Duty to make payment: Every allottee shall be responsible to make necessary payments in a prescribed manner and within the specified time as per the agreement for sale. Every allottee shall also pay in timeshare of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other charges.

2. Duty to pay interest for delayed payments: The allottee shall be liable to pay interest at the prescribed rate for any delay in payment. The obligations of the allottee and the liability towards interest may be reduced when mutually agreed to between the promoter and such allottee.

3. Duty participate in the formation of association: Every allottee of the apartment, plot or building, shall participate towards the formation of an association or society or cooperative society of the allottees, or a federation of the same.

4. Duty to take physical possession: Every allottee shall take physical possession of the apartment, plot, or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot, or building, as the case may be.

5. Duty to participate in the registration of the conveyance deed: Every allottee shall participate in the registration of the conveyance deed of the apartment, plot, or building.

Question 19.
Mr. GPL, who has relevant experience of more than 22 years in the real estate sector attained the age of 62 years on 31.12.2017. The State Government of Maharashtra appointed him as the Chairperson of the Real Estate Regulatory Authority with effect from 1.1.2018. You are required to state, with reference to the provisions of the Real Estate (Regulation & Development) Act, 2016, the term for which he may be appointed as Chairperson of the Authority. Whether he can be reappointed as Chairperson of the Authority?
Answer:
As per Section 23 of the Real Estate (Regulation & Development) Act, 2016,
(a) The Chairperson and Members shall hold office for a term not exceeding 5 years from the date on which they enter upon their office, or until they attain the age of 65 years, whichever is earlier
(b) He shall not be eligible for re-appointment.
(c) Keeping in view the above provisions, Mr. GPL can be appointed as chairperson since at the date of an appointment he has attained the age of 62 years.
(d) However, on the attainment of the age of 65 years, Mr. GPL shall have to vacate the office of Chairperson
(e) He shall not be reappointed as chairperson.

Question 20.
Mr. Ratan Baheti retired as a Member of the Real Estate Regulatory Authority (RERA) formed by the State of Tamilnadu. He was offered the post of director in Big Deal Ltd. with which he had direct and significant official dealings during his term of office. Can he join the Big Deal Ltd. with effect from 1.1.2019?
What will be the position if Mr. Ratan Baheti joins OMR Ltd., a Government Company, as a Manager with effect from 1.1.2019?
Answer:
As per Section 27 of the Real Estate (Regulations Development) Act, 2016, Chairperson or a Member shall not:
(a) Enter into a contract of service or accept an appointment to a board of directors or accept an offer of employment with an entity with which he had direct and significant official dealings during his term of office.
(b) Act, for or on behalf of any person or organization in connection with any specific proceeding or transaction or negotiation to which the Authority is a party
(c) Give advice to any person using information which was obtained in his capacity as the Chairperson or a Member
(d) Enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such

In the present case, Big Deal Ltd. is an entity with which Mr. Ratan Baheti had direct and significant official dealings during his term of office. Therefore, Mr. Ratan Baheti cannot be appointed in Big Deal Ltd. as a director. However, he can accept employment in OMR Ltd. a Government Company as a restriction as to employment, is not applicable for employment in a Government Company.

Question 21.
Aakash Malhotra wants to file a complaint against the promoter of a real estate project. Advice regarding the course of action available to him in this regard.
Answer:
Filing of complaints with the Authority or the adjudicating officer [Section 31]: (a) Any aggrieved person may file a complaint with the Authority or the Adjudicating Officer for any violation or contravention of the provisions of the Act or the Rules and Regulations made thereunder against any promoter, allottee or real estate agent.

(b) Complaint can also be filed by the association of allottees or any voluntary I consumer association registered under any law for the time being in force,

(c) The complaint has to be filed in prescribed form and manner along with prescribed fees.

Question 22.
Write a short note on Real Estate Sector Advocacy
Answer:
Advocacy and awareness measures [Section 33]:

  1. Reference to Authority: While formulating a policy or law on the real estate sector, the Appropriate Government may make a reference to the Authority for its opinion on the possible effect of such policy or law on the real estate sector.
  2. Opinion with 60 days: The Authority shall give its opinion to the Appropriate Government within a period of 60 days from the date of receipt of a reference. The Appropriate Government may take such action as it deems fit on the opinion given by the Authority.
  3. Not Binding: The opinion given by the Authority shall not be binding upon the Appropriate Government in formulating such policy or laws.
  4. Measure for Awareness: The Authority shall take suitable measures for the promotion of advocacy, creating awareness, and imparting training about laws relating to the real estate sector and policies.

Question 23.
Explain the functions of ‘Real Estate Regulatory Authority under the Real Estate (Regulation & Development) Act, 2016. [June 2019 (3 Marks)]
Answer:
Functions of Authority for promotion of real estate sector: Section 32 provides that the Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient, and competitive real estate sector make recommendations to the Appropriate Government of the competent authority on:

  1. Protection of interest of the allottees, promoter, and real estate agent.
  2. Creation of a single-window system for ensuring time bound project approvals and clearances for timely completion of the project.
  3. Creation of a transparent and robust grievance redressal mechanism against acts of omission and commission of competent authorities and their officials.
  4. Measures to encourage investment in the real estate sector including measures to increase financial assistance to the affordable housing segment.
  5. Measures to encourage construction of environmentally sustainable and affordable housing, promoting standardization and use of appropriate construction materials, fixtures, fittings, and construction techniques.
  6. Measures to encourage grading of projects on various parameters of development including grading of promoters.
  7. Measures to facilitate amicable conciliation of disputes between the promoters and the allottees through dispute settlement forums set up by the consumer or promoter associations.
  8. Measures to facilitate digitization of land records and system towards conclusive property titles with title guarantee.
  9. To render advice to the appropriate Government in matters relating to the development of the real estate sector.
  10. Any other issue that the Authority may think necessary for the promotion of the real estate sector.

Question 24.
Write a short note on Functions of the Central Advisory Council
Answer:
Functions of Central Advisory Council [Section 42]: The functions T of the Central Advisory Council shall be to advise and recommend the Central Government

  • on all matters concerning the implementation of the Act;
  • on major questions of policy;
  • towards the protection of consumer interest;
  • to foster the growth and development of the real estate sector;
  • on any other matter as may be assigned to it by the Central Government.

The Central Government may specify the rules to give effect to the recommendations of the Central Advisory Council.

Question 25.
Referring to the provisions of the Real Estate (Regulation & Development) Act, 2016, answer the following:
(i) Who can file an appeal against the decision of the Real Estate Regulatory Authority or the Adjudicating Officer?
(ii) What is the time limit for filing such an appeal?
(iii) Whether Appellate Tribunal has the power to pass interim orders?
(iv) What is the time limit for disposal of the appeal by the Appellate Tribunal? ,
Answer:
Application for settlement of disputes and appeals to Appellate Tribunal [Section 44]:
Who can file an appeal: The following can file the appeal against any direction or order or decision of the Authority or the Adjudicating Officer:
(a) Appropriate Government or
(b) Competent Authority or
(c) A person aggrieved by any direction or order or decision of the Authority or the Adjudicating Officer.

The time limit for filing an appeal: Every appeal shall be preferred within a period of 60 days from the date on which a copy of the direction or order or decision made by the Authority or the Adjudicating Officer is received. An appeal has to be made in the prescribed form along with the prescribed fee. However, the Appellate Tribunal may entertain any appeal after the expiry of 60 days if it is satisfied that there was sufficient cause for not filing it within that period.

Orders by Appellate Tribunal: On receipt of an appeal, the Appellate Tribunal may after giving the parties an opportunity of being heard, pass such orders, including interim orders, as it thinks fit.

Copies of order: The Appellate Tribunal shall send a copy of every order made by it to the parties and to the Authority or the adjudicating officer.

Disposal of appeal: The appeal shall be dealt with as expeditiously as possible and endeavor shall be made by it to dispose of the appeal within a period of 60 days from the date of receipt of the appeal.

However, where the appeal could not be disposed of within the said period of 60 days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that period.

Power to call record: The Appellate Tribunal may call relevant records to examine the legality or propriety or correctness of any order or decision of the Authority or the Adjudicating Officer and may pass such orders as it thinks fit for this purpose.

Question 26.
Can a Practicing Company Secretary be appointed to present the case of a public company before the Real Estate Regulatory Authority? Would your answer change if he is appointed to present the case before Appellate Tribunal?
Answer:
Right to legal representation [Section 56]: The applicant or appellant may either appear in person or authorize one or more Company Secretaries or Chartered Accountants or Cost Accountants or legal practitioners or any of its officers to present his or its case before the Appellate Tribunal or the Regulatory Authority or the Adjudicating Officer, as the case may be. Thus, a public company can appoint a practicing company secretary to present its case before Real Estate Regulatory Authority and Appellate Tribunal.

Question 27.
When a person can file an appeal in High Court as per the provisions of the Real Estate (Regulation & Development) Act, 2016? What is the time limit for filing such an appeal? Whether it is possible to file an appeal for a case that involves a substantial question of fact?
Answer:
Appeal to High Court [Section 58]: Any person aggrieved by any decision or order of the Appellate Tribunal, may file an appeal to the High Court within a period of 60 days from the date of communication of the decision or order of the Appellate Tribunal to him.

However, High Court may entertain the appeal after the expiry of the said period of 60 days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

Such appeal can be filed if the case involves a substantial question of law. No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.

Question 28.
How much penalty can be levied on the promoter of real estate if he fails to comply with the orders of the Real Estate Regulatory Authority or Appellate Tribunal?
Answer:
Penalty for failure to comply with orders of Authority by promoter [Section 63]: If any promoter fails to comply with or contravenes any of the orders or directions of the Authority, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend. up to 5% of the estimated cost of the real estate project.

Penalty for failure to comply with orders of Appellate Tribunal by promoter [Section 64]: If any promoter, who fails to comply with, or contravenes any of the orders, decisions, or directions of the Appellate Tribunal, he shall be punishable

  • With imprisonment for a term which may extend up to 3 years or
  • With fine for every day during which such default continues, which may cumulatively extend up to 10% of the estimated cost of the real estate project or
  • With both.

Question 29.
All offenses under the Real Estate (Regulation & Development) Act, 2016 are compoundable. Comment.
Answer:
Compounding of offenses [Section 70]: If any person is punished with imprisonment under the Act, the punishment may, either before or after the institution of the prosecution, be compounded by the Court on such terms and conditions and on payment of such sums as may be prescribed. However, the sum prescribed shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offense so compounded.

Question 30.
Whether Civil Court entertain a suit for violation of any provisions of the Real Estate (Regulation & Development) Act, 2016?
Answer:
Bar of jurisdiction [Section 79]: No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority/Adjudicating Officer/Appellate Tribunal is empowered by or under the Act to determine.

No injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act.

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