BEFORE THE
 MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
                   MUMBAI
                      COMPLAINT NO. CC006000000078646
Shailendra Dwiwedi & anr                                            ..Complainant/s

   Versus

Mateshwari Reltors                                                  ..Respondent/s

MahaRERA Regn. No. P51700010188
                                        Coram:
                                        Hon’ble Shri Madhav Kulkarni.
                                        Adjudicating Officer, MahaRERA.

                                        Appearance:
                                        Complainant: Adv. Avinash Pawar
                                        Respondents : CA Ashwin Shah

                      ORDER BELOW APPLICATION
        OF THE RESPONDENT CHALLENGING JURISDICTION OF THE AO
              TO DEAL WITH NON-COMPLIANCE APPLICATION.
                                   (Dated 12.10.2021)
1 .Final order in this matter was passed on 4.12.2019 and respondent/ promoter was
directed to refund the amount received with interest, within 30 days. Since the respondent
did not comply with the order, complainants filed application about non-compliance.

2 .The respondent in present application alleged that the execution proceeding jurisdiction
lies with the authority as per Section 34(f) and 34(g)of the Act and not with the AO. The
Authority has delegated powers recently to the Secretary u/s 81 of the Act ,for execution of
the orders. Even Hon’ble High Court in the matters of Arunesh Prasad Vs. Tata Housing
and Lavasa Corporation Vs. Jitendra Tulsiyani has held that administrative powers lie with
the authority and recovery proceedings u/s 40 of the Act falls in the basket of
administrative function. Hence, this non-compliance application needs to be transferred to
the Authority. The prayer has been opposed by the complainant.

3 .Heard CA Mr. Ashwin Shah for Respondent and Adv. Avinash Pawar for complainant.
Both made submissions on expected lines. Shri Shah cited Judgement of Hon’ble Kerala
High Court in CRP no. 253 of 2013 in the matter of S. K. Pandit Vs Shri Krishna Swami
Devaswam. There dispute was in respect of assets of temple. According to Shri Shah
powers are conferred on AO u/s 71 of the RERA for adjudging compensation u/s 12, 14, 18
and 19 of the Act. Section 40 provides for execution of orders passed by AO or the
Authority or the Appellate Authority but does not provide that powers are conferred on
AO in that respect. Shri Avinash Pawar pointed to Rule 3 and 4 of Maharashtra Rules

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2017. Shri Shah pointed out that only orders of the AO contemplated under Section 40 sub--seciton
2 can be enforced by AO which means, orders except those about interest, penalty and
compensation. Section 40 sub-section (1) only speaks that the above stated sums shall be
recoverable as arrears of land revenue. According to Shri Shah powers directing recovery as
arrears of land revenue are not conferred on AO.

4 . Division Bench of Hon’ble Bombay High Court in WP NO. 3221 of 2020 in the matter of Marval
Sigma Homes Vs. Rustom Mehta alongwith the WP no. 2627 of 2020, framed issue no. 2 as to
whether order directing return of consideration amount with interest is required to be executed or
enforced under sec.40 r/w Rule 3 or Rule 4 of Maharashtra Rules. There the AO had directed
issuance of recovery warrant u/s 40 sub-section (1).Para 12 enumerates relevant provisions in the
Act and Rules. In para 13 sub-para v- it is observed that in view of the above, we are of the clear
view that expression compensation as used in Section 40(1) must be understood in the sense of
Section 71 of the Act viz. to include all amount that the promoter is liable to pay to an allottee
interalia u/s 18 of the Act or for that matter u/s 12, 14, and 19 of the Act. Under sub-para (vi)- It is
also clear from reading Section 40(1) of the Act when contrasted with 40(2) of the Act that clear
intention of the Legislature was to group all directions to pay or monetary relief granted against the
promoter in one category that is section 40(1) of the Act and to treat them differently from all other
orders for the purpose of means of enforcement or recovery. There is no valid explanation or
justification for treating some monetary reliefs granted to allottees differently from others as has
been suggested by Respondent no. 4. The intention of legislature as is apparent from preamble of
the Act was to provide for speedy and efficacious remedy to allottees against the breaches of
promoters and developers………

             Para 13.1 - for the above reasons we are of the view that recovery certificate resulting
order from AO has rightly been issued u/s 40(1) of the Act read with Rule 3 of RERA Rules.

              In view of the observation of the Hon’bel Bombay High court submission of the
respondent cannot be accepted that AO has power to enforce orders u/s 40 sub-section (2) but no
power to execute orders referred in Section 40 sub-section (1) I therefore, pass following order :

                                              ORDER

               Application of respondent challenging jurisdiction stands rejected.




                                                                        (Madhav Kulkarni)
       Mumbai                                                          Adjudicating Officer
       Date : 12.10.2021                                                          MahaRERA




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