Monday, July 24, 2017

'RERA' contd. An UPDATE

In an attempt to lighten the prevailing serious common mood (mode !) of the concerned public :

RERd(?)A- Notably, nay ironically, the only development, considered really worth a mention, is the now added - 'd' - no guess unwittingly or otherwise ?
For, In many of the media reports/ and certain concerned circles, as may have been observed- for ease of short, the used abbreviation has been- RERA !

TAIL PIece: "He requested the states and UTs to “direct the officers concerned to take immediate action for notifying the rules, if not done so far, and establish regulatory authority and appellate tribunal (THE RESPONSIBILITY COULD BE ASSIGNED TO SOME ALREADY EXISTING TRIBUNAL) to ensure the RERDA is immediately implemented”. (FONT supplied)

How well thought out is the suggestion by the Authority, and not impulsively made just off the cuff, is anybody's guess. even otherwise, assuming,the suuggeation is intended to be taken any seriously, and were to be followed, will not the RERA, as well as the other STATE enactment under which any 'EXISTING TRIBUNAL' ( decided 'to be designated , by order' 'to 'HEAR' appeals'- ref. Provisos to sec. 43 (4) of RERA) came to be set up, be first require to be thoroughly gone into, and be drastically /appropriately amended / restructured, in order to be given a statutory effect and be lawfully binding?
KEY Note: In so thinking / viewing, one has in mind, with due focus on, the host of governing provisions as embodied in CHAPTER VII (rtw CHAPTER VI) ; so also in CHAPTER V, in terms whereof the THE REAL ESTATE REGULATORY AUTHORITY has to be first established and incorporated, etc., for discharging its functions strictly in accordance there with.


Prima facie , the above referred suggestion talks of a tentative way-out , 'pending' establishment of only  'appellate tribunal'; NOT OF REGULATORY AUTHORITY.

That, as is to be inferred, has been made having regard to the provision tucked in, which reads:

"Provided that, until the establishment of an Appellate Tribunal under this section, the appropriate Government shall designate, by order, any Appellate Tribunal Functioning under any law for the time being in force, to be the Appellate Tribunal to HEAR appeals under the Act:

Provided further that after the Appellate Tribunal under this section is established, all matters pending with the Appellate Tribunal designated to hear appeals, shall stand transferred to the Appellate Tribunal so established and shall be heard from the stage such appeal is transferred."
(see CHAPTER VII, Sec. 43 (4) - Provisos to)

To be specially made a note of, however,- there are similar provisions (of interim mechanism) for designating by Order any other authority (regulatory) or officer to be specified to act as 'regulatory authority' UNTIL THE ESTABLISHMENT OF such authority.

The mechanism so envisaged is obviously intended to serve as an interim measure. Be that as it may, even on a cursory glance through, but if mindfully done, in one's firm view, based on a critical analysis and incisive appreciation of the whole scheme of things, the so intended interim measure is, to say the least, patently 'half-baked' (so to say). In that, the term 'Appellate Tribunal', as defined, must, however, for all the purposes of RERA, be "the Real Estate Appellate Tribunal established under section 43". To be precise, " any Appellate Tribunal Functioning under any law for the time being in force", EVEN IF DESIGNATED BY ORDER to be the Appellate Tribunal "to HEAR appeals under the Act", in the interregnum, will- according to a conjoint reading and harmonious interpretation, have none of the powers or be competent to carry out any of the functions , same way as / until the Tribunal has been, as mandated, formally 'established'.For instance, any other tribunal designated as 'appellate tribunal' (for the purpose of RERA) can merely 'HEAR' appeals, but with no powers to decide, pass any order and dispose it of.

 (To Be Finished)

Foot Note: Source Material (for independent Research Study) >

> Madras Bar Association vs Union Of India & Anr on 25 ... - Indian Kanoon

The history - /ical developments of "appellate tribunals' (in India), under some of the laws, but not all, set out in the judgment make for an interesting study; serve as a good backdrop.One such tribunal, apart from say, 'SAT'  of a recent origin is CLT (company law tribunal). Breifly noted, those are tribunals specially set up with specified  powers and functions, for only the purposes of that Act. As such,  none of those tribunals could conceivably be designated by the state government as the tribunal for any purpose under the RERA. More so, without first having the other Act drastically amended and suitably structured. That again would be a laborious exercise and entail a long drawn process. Another crucial aspect would be in-depth consideration of  propriety / vires under the Constitution, of  any such step being taken.

For that matter, amendments of, and restructuring  the provisions of, the RERA itself might be required in order to accomplish the above strategy.     

> L. Chandra Kumar vs Union Of India And Others on ... - Indian Kanoon


> Unlike Tax Tribunal, National Company Law Tribunal survives SC ...

<> Imp. provisions -Of relevance (as selected):
Definition -          Sec. 2......

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