The impugned rules were found to be not inconsistent with the provisions of the Act, as they provided the authority with the power to examine the admissibility of a complaint and transfer it to the adjudicating officer for further action.

ORDER VIJAY KUMAR SHUKLA, J. – The petitioners, who are Advocates by profession, have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India as Public Interest Litigation, challenging the validity of Rule 26(2), 26(3) and 26(5) of ‘the Madhya Pradesh Real Estate (Regulation and Development) Rules, 2017’ (hereinafter referred as ‘Rules, 2017’) as amended vide amendment dated 20-9-2019 on the ground that the aforesaid provisions are ultra vires to the parent Act called ‘the Real Estate (Regulation and Development) Act, 2016’ (hereinafter referred as ‘Act’).

2. The petitioners urged that the aforesaid Rules, 2017 are inconsistent with the provisions of section 71 of the Act. It is contended that parent Act empowers only Adjudicating Officer to receive complaints, issue summons, inquire and adjudicate the complaints filed under sections 12, 14, 18 and 19 of the Act. By the impugned provisions the Authority established under section 20 of the Act has been empowered to receive, issue summons and inquire and adjudicate the complaints filed under sections 12, 14, 18 and 19. It is argued that section 71 of the Act categorically provided the Adjudicating Officer to receive and inquire the complaint, therefore, the provisions of Rule 26(2), 26(3) and 26(5) of the Rules, 2017 are inconsistent to the Act and are liable to be struck down as ultra vires.

3. To appreciate the aforesaid contentions, it would be apt to reproduce Rule 26 of the Rules 2017 : –

“26. Manner of filing a complaint with the adjudicating officer and inquiry by the adjudicating officer. – (1) Any aggrieved person may file a complaint for compensation under sections 12, 14, 18 and 19 to be decided by the adjudicating officer, in Form ‘N’ which shall be accompanied by payment in the manner prescribed of a fee of rupees one thousand.

(2) Upon receipt of the complaint the Authority shall examine it for admissibility; if it is prima facie found to be without substance or beyond jurisdiction or without locus standi, the Authority may reject it or decline to accept it, for the reason to be recorded in the form of a written order.

Provided that no complaint receive under sub-rule (1) shall be rejected without giving an opportunity of hearing the complainant or his authorised agent an opportunity to be heard.

(3) if the Authority finds the complaint to be prima facie admissible as a case for compensation under sections 12, 14, 18 or 19, it shall transfer it to the concerned adjudicating officer for further action.

(4) The adjudicating officer shall for the purposes of adjudging compensation follow summary procedure for inquiry in the following manner, namely,

(a) upon receipt of the complaint the adjudicating officer shall issue a notice along with particulars of the alleged contravention and the relevant documents to the promoter;

(b) If the respondent is a promoter of a registered project, then issue of notice by e-mail to the up-dated e-mail address given by him in the record of the Authority shall be sufficient and proof of his having been validly served;

(c) the notice shall specify a date and time for further hearing.

(d) If the respondent chooses to be represented by an authorized person as per the provisions of section 56, written authorization to act as such and the written consent thereto by such authorized person, both in original, shall be presented to the adjudicating officer on or before the time fixed for hearing;

(e) On the date so fixed, the adjudicating officer shall explain to the respondent or his authorized agent, as the case may be, about the contravention alleged to have been committed in relation to any of the provisions of the Act or the rules and regulations made there under and if the respondent –

(i) pleads guilty, the adjudicating officer shall record the plea, and award such compensation as he thinks fit in accordance with the provisions of the Act or the rules or the regulations, made there under ;

(ii) does not