The legislative background demonstrates the concern of the policy makers that the unregulated

growth of the real estate sector, accompanied by a lack of professionalism and standardization, had
resulted in serious hardship to consumers. The real estate sector is of crucial significance to meet the
demand for housing in the country. While remedies were provided to consumers by the Consumer
Protection Act, 1986, this recourse was "curative" and did not assuage all the concerns of buyers on
the one hand and promoters on the other hand in the sector.

Forum for People's Collective Efforts and Ors. vs. The State of West Bengal and Ors. (04.05.2021 - SC)
: MANU/SC/0339/2021

This judgment of the Supreme Court comes as a boon to homebuyers / allottees of

projects as it recognises and confirms the additional remedy available to them to pursue
their grievances. While this position has been upheld consistently, the present decision
provides a detailed analysis of the remedies available to homebuyers under the CP Act
vis a vis the RERA. It shines light on serval other important aspects pertaining to
entitlement of the complainants including time promised for completion under the builder
buyer agreement as opposed to the time for completion mentioned under RERA
registration; as well as the savings under the New Act, of actions initiated under the CP
Act. This decision is likely to provide more hope to consumers struggling with
complicated aspects of alternate remedies being available under the CP Act and the
RERA.

(2020) 10 SCC 783

Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna and Ors. (11.01.2021 - SC) : MANU/SC/0013/2021

No reference was however made to the fact that the Project had been registered under the RERA
Act. Imperia structures vs anil patni

All the Complainants had purchased only one residential apartment each for self-use. Therefore, the
issue whether the Complainants satisfied the requirements of being "Consumers" under the
provisions of the CP Act was rightly decided in favour of the Complainants.

The question whether the remedies available to the consumers under the provisions of the CP Act
would be additional remedies, was considered by this Court in some cases, the notable cases being:

In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through L.Rs.
and Ors. MANU/SC/1025/2003 : (2004) 1 SCC 305, this Court observed:

11. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that
the main objective of the Act is to provide for better protection of the interest of the consumer and
for that purpose to provide for better redressal, mechanism through which cheaper, easier,
expeditious and effective redressal is made available to consumers. To serve the purpose of the Act,
various quasi-judicial forums are set up at the district, State and national level with wide range of
powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are
empowered to give relief of a specific nature and to award, wherever appropriate, compensation to
the consumers and to impose penalties for noncompliance with their orders.

12 . As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition
to and not in derogation of any other provisions of any other law for the time being in force. Having
due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of
the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the
context of the present case to give meaning to additional/extended jurisdiction, particularly when
Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other
Acts unless there is a clear bar.

Interpreting Section 3 of the CP Act, it was held that the remedy provided under the CP Act would be
in addition to the remedies provided under the other Acts.

As a matter of fact, any attempt to exclude the farmers (allottees) from the ambit of the Consumer
Protection Act by implication will make that Act vulnerable to an attack of unconstitutionality on the
ground of discrimination and there is no reason why the provisions of the Consumer Protection Act
should be so interpreted. In National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr.
MANU/SC/0038/2012 : (2012) 2 SCC 506, it was observed:

In the last mentioned judgment, National Seeds Corporation Case MANU/SC/0038/2012 : (2012) 2
SCC 506, this Court referred to the earlier judgments in Fair Air Engineers (P) Ltd. v. N.K. Modi
MANU/SC/0141/1997 : (1996) 6 SCC 385, Thirumurugan Coop. Agricultural Credit Society v. M.
Lalitha MANU/SC/1025/2003 : (2004) 1 SCC 305, Skypak Couriers Ltd. v. Tata Chemicals Ltd.
MANU/SC/0845/2000 : (2000) 5 SCC 294 and Trans Mediterranean Airways v. Universal Exports
MANU/SC/1126/2011 : (2011) 10 SCC 316 and held that the remedy available under the Act is in
addition to the remedies available under other statutes and the availability of alternative remedies is
not a bar to the entertaining of a complaint filed under the Act.

and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP
Act.

Before we consider whether the provisions of the RERA Act have made any change in the legal
position stated in the preceding paragraph, we may note that an allottee placed in circumstances
similar to that of the Complainants, could have initiated following proceedings before the RERA Act
came into force.
A) If he satisfied the requirements of being a "consumer" under the CP Act, he could have initiated
proceedings under the CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a "consumer", he could initiate and avail
only normal civil remedies.

C) If the agreement with the developer or the builder provided for arbitration:

i) in cases covered under Clause 'B' hereinabove, he could initiate or could be called upon to invoke
the remedies in arbitration.
ii) in cases covered under Clause 'A' hereinabove, in accordance with law laid down in Emaar MGF
Ltd. and Anr. v. Aftab Singh MANU/SC/1458/2018 : (2019) 12 SCC 751, he could still choose to
proceed under the CP Act.

In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession
of an apartment duly completed by the date specified in the agreement, the Promoter would be
liable, on demand, to return the amount received by him in respect of that apartment if the allottee
wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice
to any other remedy available to him". The right so given to the allottee is unqualified and if availed,
the money deposited by the allottee has to be refunded with interest at such rate as may be
prescribed. The case of Himanshu Giri came under the latter category. The RERA Act thus definitely
provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his
investment.

On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in
paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court.
However, as regards the allottees who can be called "consumers" within the meaning of the CP Act,
two questions would arise; a) whether the bar specified Under Section 79 of the RERA Act would
apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything
inconsistent in the provisions of the CP Act with that of the RERA Act.

In Malay Kumar Ganguli v. Dr. Sukumar Mukherjee MANU/SC/1416/2009 : (2009) 9 SCC 221, it was
held by this Court:

The proceedings before the National Commission are although judicial proceedings, but at the same
time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may
have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd.
v. Employees MANU/SC/0030/1950 : AIR 1950 SC 188 : 1950 SCR 459 and Nahar Industrial
Enterprises Ltd. v. Hong Kong & Shanghai Banking Corporation (2009) 6 SCC 635.

On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the
Commission or Forum under the provisions of the CP Act to entertain any complaint.

Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under
the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with
the permission of the Forum or Commission and file an appropriate application before the
adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the concerned
complainant but does not statutorily force him to withdraw such complaint nor do the provisions of
the RERA Act create any mechanism for transfer of such pending proceedings to authorities under
the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite
significant.

Further, Section 18 itself specifies that the remedy under said Section is "without prejudice to any
other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to
the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an
application under the RERA Act.
we may profitably refer to the decision in Pioneer Urban Land and Infrastructure Limited and Anr. v.
Union of India and Anr. MANU/SC/1071/2019 : (2019) 8 SCC 416, where a bench of three Judges of
this Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016,
RERA Act and other legislations including the provisions of the CP Act. One of the conclusions arrived
at by this Court was:

100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only
in the event of conflict that the Code will prevail over RERA. Remedies that are given to allottees of
flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a
position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the
triggering of the Code.

Lastly, it may be noted that the Consumer Protection Act, 2019 3 (hereinafter referred as, "2019
Act") was enacted by the Parliament "to provide for protection of the interests of consumers and for
the said purpose, to establish authorities for timely and effectively administration and settlement of
the consumers' dispute and for matters connected therewith or incidental thereto". Sections 2(7),
2(33), 2(37), and 2(42) define expressions "Consumer", "Product", "Product Seller" and "Service"
respectively. Sections 85 and 86 deal with liability of "Product Service Provider" and "Product Seller".
Sections 100 and 107 of 2019 Act are to the following effect:

Section 100 of 2019 Act is akin to Section 3 of the CP Act and Section 107 saves all actions taken or
purported to have been taken under the CP Act. It is significant that Section 100 is enacted with an
intent to secure the remedies under 2019 Act dealing with protection of the interests of Consumers,
even after the RERA Act was brought into force.

Thus, the proceedings initiated by the complainants in the present cases and the resultant actions
including the orders passed by the Commission are fully saved.

Pioneer vs uoi

Another parallel remedy is available is recognised by RERA itself in the proviso to Section 71(1), by
which an allottee may continue with an application already filed before the Consumer Protection
fora, he being given the choice to withdraw such complaint and file an application before the
adjudicating officer under RERA read with Section 88.

Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such
allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection
Act, 1986, RERA as well as the triggering of the Code.

The fact that RERA is in addition to and not in derogation of the provisions of any other law for the
time being in force, also makes it clear that the remedies under RERA to allottees were intended to
be additional and not exclusive remedies.

Several judgments were referred to in which ordinarily a later Act containing a non-obstante Clause
must be held to have primacy over an earlier Act containing a non-obstante clause, as Parliament
must be deemed to be aware of the fact that the later Act is intended to override all earlier statutes
including those which contained non-obstante clauses. This statement of the law was departed from
in KSL & Industries (supra) only because of the presence of a Section like Section 88 of RERA
contained in the Recovery Act, which makes it clear that the Act is meant to be in addition to and not
in derogation of other statutes.

In a judgment dated 2 November 2020, passed by the Supreme Court of India in the
case of M/s Imperia Structures Ltd v Anil Patni & Another (Civil Appeal No. 3581-3590 of
2020), the Supreme Court held that the redressal mechanism / provisions under the
Real Estate (Regulation and Development) Act 2016 (RERA) do not act as a bar to
complaints under the Consumer Protection Act 1986 (CP Act). The principles laid down
in this judgment by the Supreme Court, finds place in a range of earlier series of
decisions passed by various High Courts as well as the National Consumer Disputes
Redressal Commission (NCRDRC) which have stated that allottees / homebuyers are
well within their rights to avail remedies the CP Act as well as RERA and even the
Insolvency and Bankruptcy Code 2016 (IBC).

The Court also observed that Section 18 of RERA itself specifies that the remedy under said Section
is “without prejudice to any other remedy available” which provision, in effect acknowledges such
other remedy available to the allottee. The Court also held that a reading of Section 88 and
89 of RERA which specifies that the provisions of RERA would be in addition to and not
in derogation of any other law and that the provisions of RERA would have effect
notwithstanding anything inconsistent in any other law in force – made the position even
clearer.

Interestingly, the Court also referred to the newly introduced Consumer Protection Act
2019 (New Act) and found that the new Act saved all actions taken or purported to have
been taken under the CP Act, and the savings provision there under has been enacted
with an intent to secure the remedies under New Act dealing with protection of the
interests of Consumers, even after the RERA Act was brought into force. As such, it held
that the proceedings initiated by the complainants in the present cases and the resultant
actions including the orders passed by the NCDRC were fully saved.

The Real Estate (Regulation and Development) Act 2016 (hereinafter referred to as "RERA
Act") came into force on May 01, 2016, with the objective to bring relief for homebuyers and
developers will have to give timely possession for projects. In the judgement dated April 17,
2019 "Ajay Nagpal Vs. Today Homes & Infrastructure Pvt Ltd1" the National Consumer
Disputes Redressal Commission (hereinafter referred to as "NCDRC") has held that RERA
Act does not bar filing of a complaint under the Consumer Protection Act 1986 against a
builder/developer.

The inference was drawn from the judgement passed by the Hon'ble Supreme Court of India
in "Aftab Singh v. Emaar MGF Land Limited & Anr in Consumer Case No. 701 of 2015" on
December 10, 2018 reiterated the well-established law that valid arbitration agreements do
not bar the jurisdiction of National Consumer Disputes Redressal
Commission ("NCDRC") and other consumer forums. Aftab Singh v. Emaar MGF Land
Limited & Anr" are as follows:

Manish Kumar vs. Union of India (UOI) and Ors. (19.01.2021 - SC)

The interplay of the Consumer Protection Act, the provisions of the Real Estate Regulation Act, the
balancing of the interests of the allottees in the sense of the optimal securing of the stake of the
allottees in the continuance of the real estate project itself would only strengthen the classification
further in regard to allottees.

In Harvard Law Review, Vol. 73, p. 692 it was observed that: It is necessary that the legislature
should be able to cure inadvertent defects in statutes or their administration by making what has
been aptly called 'small repairs'.