Doctrine Of Election | No Right To Re-Approach NCDRC Once Complaint Is Withdrawn To Move RERA: NCDRC

National Consumer Disputes Redressal Commission [NCDRC], while applying the doctrine of election, has held that a complainant, having exercised the option of withdrawing his complaint from NCDRC and having approached RERA, does not have the right to re-approach the NCDRC.

A bench comprising members Dr. S.M. Kantikar and Binoy Kumar further held that the same is also equivalent to forum shopping.

It was held,

"Having exercised the option once, he cannot again come back to this Commission seeking redressal of his grievance. In this case, it is noticed, he has been going to various Tribunals and Courts and the allegation of forum shopping is not incorrect."

The complainant had first moved the NCDRC with a complaint, which was withdrawn and filed before the Haryana Real Estate Authority Panchkula. Two cases were filed - one under Section 7 of the Real Estate (Regulation and Development) Act, 2016 and the second under Section 18 of the RERA. The HRERA rejected the complaints, and the complainant approached the appellate authority, but withdrew it later. After that, the complainant filed the present complaint before the NCDRC.

Advocates for the opposition Pravin Bhadur, Kanika Gomber, Amit Agarwal and Saurabh Kumar cited the principle of Res Judicata, stating that HRERA has already passed orders which can only be challenged as per the relevant provisions of RERA Act, 2016.

Advocates for the complainant, Gaurav Gupta and Samyak Gangwal argued that HRERA appellate tribunal gave the complainant the liberty to avail legal remedy before the appropriate forum. It was further argued that the order of RERA Haryana is not following the power vested with it at that particular time and, therefore, should be considered a nullity.

A distinction was drawn between the management of the Regulatory Authority and the Adjudicating Officer under RERA 2016. Reliance was placed on Sameer Mahawar Vs. M.G. Housing where it was held that HRERA Authority has no jurisdiction to entertain any of the issues with respect to refund claim. Instead, the adjudicating officer has jurisdiction to adjudicate the refund issues. Therefore, the impugned Orders passed earlier by the Haryana RERA Authority, declining refund is without jurisdiction and cannot be sustained in the eyes of the law.

Therefore, the critical issue in the instant matter before the NCDRC is whether the Doctrine of Election will apply in the case.

NCDRC refused to go into the merits of the order of HRERA for which there is statutory provision for appeal and which was availed by the complainant to Sameer Mahawar; it was held that the issue has already been dealt with Newtech Promoters & Developers Pvt. Ltd. v. State of Uttar Pradesh & Ors.

NCDRC held that the present case is covered under the Doctrine of Election. The NCDRC referred to Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Ors (2021), where the issue of the doctrine of election was discussed along with other cases. Taking those principles laid by the apex court, it was held that the complainant already exercised his Doctrine of Election by withdrawing his complaint from the Commission.

The NCDRC held that there are remedies available against the Order of the RERA Authority as per RERA statute, and it observed,

"Having opted for redressal of his grievance under Doctrine of Election by withdrawing his complaint from this Commission, the Complainant has no legal right to get back to this Commission after having already gotten Orders from RERA Authority."

It was held that Haryana Appellate Tribunal rightly ordered it, and the complainant proceeded to file his complaint in the appropriate Court of law. This Commission is not the appropriate forum. It should have pursued those remedies.

Case Title: Shailesh Gupta v. Puri Construction Private Ltd.

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