The existence of an arbitration clause does not oust the jurisdiction of RERA; jurisdictional issues are to be decided by the arbitral tribunal, not the court.

JUDGMENT :

SOMASEKHAR SUNDARESAN, J.

Context and Background:

1. This Petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) seeking appointment of an arbitrator in connection with disputes and differences arising out of an Agreement for Sale dated November 16, 2019 (“Agreement”). The arbitration agreement is contained in Article 13.2 (found at Page 83 of the Petition) of the Agreement. In the interest of brevity, the arbitration agreement is not being extracted here. Suffice it to say that this matter falls within the jurisdiction of this Court.

2. The core scope of dispute between the parties is about the provision of amenities in the flat purchased by the Petitioner from the Respondent not being in conformity with the Agreement. It is common ground that the agreement in question has an arbitration clause as an arbitration agreement contained in Article 13.2 (Page 83).

Core Issue:

3. For purposes of these proceedings, the only objection that is presented for my consideration on behalf of the Respondent is a point of law, namely, that the disputes sought to be raised by the Petitioner are not arbitrable in view of a judgment dated October 25, 2024 passed by the Learned Single Judge of this Court in Second Appeal No.434 of 2023 (“Second Appeal Judgement”), whereby in the conclusion, it is stated that disputes amenable to the jurisdiction of the Real Estate (Regulation And Development) Act, 2016 (“RERA Act”) are non- arbitrable in nature. Consequently, it is submitted that the Learned Single Judge of this Court has held that once jurisdiction of RERA is attracted, the dispute is not amenable to arbitration. The upshot is that judicial discipline would require this Court to follow the same position as declared in that judgement.

Analysis and Findings:

4. In my opinion, this objection need not detain my attention significantly because of multiple reasons – first, the jurisdiction under Section 11 of the Arbitration Act is a specific one with very limited contours of examination permitted; second, issues of jurisdiction are actually left to the arbitral tribunal under Section 16 of the Act; and third, the ratio in the Second Appeal Judgement is not about whether arbitration is ousted by RERA but the converse – whether RERA’s jurisdiction is ousted by arbitration.

Not the Ratio:

5. In Para 3 of the said judgment in the Second Appeal, the question of law framed is explicitly set out, and reads as follows:-

“Whether the jurisdiction of Real Estate Regulatory Authority established under Section 20 of the Real Estate Regulation and Development Act, 2016 is ousted, if the agreement between the promoter and the allottee contains arbitration clause?”

[Emphasis Supplied]

6. Therefore, it is quite clear that what the Learned Single Judge ruled on was the question as to whether the jurisdiction of RERA, which has been established under the RERA Act would be ousted, if the agreement between the parties in those proceedings were to contain an arbitration clause. Evidently, that has been answered by the Learned Single Judge in the said judgment, holding that the existence of an arbitration clause would not oust the jurisdiction of RERA.

7. This is a fairly straightforward ratio because the RERA is a regulatory authority, vested with certain punitive as well as remedial powers. That statutory jurisdiction created by legislation could never stand ousted by the existence of an arbitration agreement. On the other hand, whether the existence of RERA’s statutory powers would render arbitral proceedings impossible to comme