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Can I file real estate dispute matter in consumer forum ?

Shivendra Pratap Singh

Advocate

08/02/2022/ 9:59:42 AM

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Question:  I have filed a real estate dispute matter in the consumer forum. Can I file a RERA related case in the consumer forum? The Builder is not giving possession of the flat even after the completion of construction. He says that the completion certificate is pending and the appropriate authority is not taking any decision on issuing the completion certificate. But I have information that he has done some illegal act in taking plan approval, therefore, his completion certificate application is pending. Hence I filed a case in the consumer forum for refund of my money or giving possession of the flat. I have also claimed to pay interest on the deposited money. The interest I am claiming is arising from August 2017.

His advocate says that my case is not maintainable in the consumer forum because there is a proper form under the RERA act. Sir, I want to know what would be the consequence of my case which I have filed in the consumer forum? The RERA authority is situated in the other district and I will face difficulty to contest the  case in another district. My advocate is also suggesting to withdraw this case and file it in the RERA authority.

Question from Madhya Pradesh

The  district consumer forum has admitted your case and it is on the stage of argument. At this stage the opposite party has raised the objection towards the jurisdiction of the consumer forum. 

Who can approach the consumer forum

A person who comes within the meaning of “consumer” as defined in Section 2(1)(d) of the Consumer Protection Act, can approach the consumer forum. The section says that a person who buys a goods or services in consideration is a consumer. 

You have bought a flat from the builder. Builder is doing a business of construction and selling of flats. Therefore, you are a consumer and the builder is a seller. Thus you can file a case in the consumer forum for protection or execution of your rights.

Prima facie there is no dispute regarding the filing of case in consumer forum. A dispute between the builder and buyer regarding the deficiency in services comes within the jurisdiction of the consumer forum. Hence, your case is maintainable under the Consumer Protection Act. 

The RERA Authority came into being after enactment of a special law for the redressal of real estate disputes. The RERA Act 2016 confers jurisdiction to the RERA Authority to hear and decide the disputes pertaining to the real estate matters. 

No conflict between the RERA authority and consumer forum

The RERA Act has no conflict with the Consumer Protection Act. It does not preclude the consumer from filing cases in the consumer forum pertaining to real estate disputes. Real estate matters are now specially dealt with by the RERA authority but flat buyers can also approach the consumer forum.  

Section 79 of the RERA act put a bar on the civil court to entertain any suit or proceeding in respect of any matter which the RERA Authority has jurisdiction to decide. But this bar or restriction particularly applies in civil court. Other forums can entertain the cases relating to the real estate disputes.

In Malay Kumar Ganguly vs Dr, J, Mukherjee AIR 2010 SC 1162, the Supreme Court has held that consumer forum is not a civil court within the meaning of the provisions of the Code of Civil Procedure. Thus bar of section 79 will not apply in your case.

Can you file a real estate dispute matter in a consumer forum?

Yes, you can file a real estate dispute matter in a consumer forum. However, Section 18 of the RERA Act confers right to the flat buyer to claim refund of money with interest. But the consumer has also the same right under the Consumer Protection Act. Both forums have concurrent jurisdiction. Because Section 88 of RERA Act empowers the consumer to avail remedy from the consumer forum also. 

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

Section 88 RERA Act

The RERA Act has no provision to withdraw or transfer cases from the other forums to the RERA Authority. Also the other forum has no power to remand the pending cases to the RERA Authority. In absence of such a provision you can file RERA related matters to the consumer forum. 

In Imperia Structure Ltd. vs Anil Patni AIR 2021 the Supreme Court has held that flat buyers can file a case in the consumer forum despite that the RERA Authority has exclusive jurisdiction in real estate dispute matters. Therefore, your case is maintainable in the Consumer Forum.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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