RERA Adjudicating Officer can be delegated refund power under Section 81; prior final unchallenged orders not rendered non est by subsequent judgments; writ relief barred by delay, laches and finality.

JUDGMENT :

SOMASEKHAR SUNDARESAN, J.

1. Rule. Rule is made returnable forthwith. By consent of the parties, heard finally.

Context and Factual Background:

2. The Writ Petition raises an interesting question as to whether an order dated December 17, 2019 (“Impugned Order”) passed by the Learned Adjudicating Officer of the Real Estate Regulatory Authority Digitally (“Authority”), is rendered non est by reason of the law declared by the 2026.04.07 +0530 (Regulation and Development) Act, 2016 (“RERA Act”). The prayer in this Writ Petition is to quash and set aside the Impugned Order and another order dated October 8, 2021 (“Recovery Order”) passed in recovery proceedings, on the premise that they are in conflict with the law subsequently declared by the Supreme Court.

3. The relevant facts for purpose of adjudicating this Petition fall in a rather narrow compass and are summarized below:-

A] A Learned Adjudicating Officer of the Authority passed the Impugned Order directing refund of the amount of Rs.1,35,99,246/- along with interest @10.20% per annum paid to the Petitioner, Marvel Landmarks Pvt. Ltd. (“Marvel”) by Respondent No.5, Mr. Siddharth Mohan Palesha, (“Flat Purchaser”) until realisation;

B] The Impugned Order was not challenged within the statutory period available for an Appeal under Section 44 of the RERA Act;

C] On October 8, 2021, on account of non-compliance with the Impugned Order, an order was passed for issuance of recovery warrant (“Recovery Order”). Execution of RERA’s order for refund of monies is to be effected as if the penalties were arrears of land revenue under the Maharashtra Land Revenue Code, 1966;

D] On November 11, 2021, the Supreme Court passed a judgment in the case of Newtech, [ Newtech Promoters and Developers Pvt. Ltd. v. State of UP – (2021) 18 SCC 1] which, according to Marvel, renders the Impugned Order and the Recovery Order non est; and

E] According to Marvel, an Adjudicating Officer can only pass orders relating to compensation while an order of refund cannot be passed by the Adjudicating Officer, and towards this end, the law declared in Newtech is sought to be pressed into service.

Core Issue:

4. The short question to be considered for adjudicating in this Petition is whether pursuant to the law declared in Newtech, Marvel would be entitled to immunity from compliance with the Impugned Order on the premise that the law as declared in Newtech, has rendered the Impugned Order non est in the eyes of law. Put differently, the case of Marvel is that Newtech has rendered the Impugned Order, although passed in the past and having attained finality in the absence of a challenge under a statutory appeal, even now the Impugned Order can be quashed as being a product of exercise of power by an authority without jurisdiction.

Contentions of the Parties:

5. Against this backdrop, I have heard at length Mr. Amit Gharte, Learned Advocate for Marvel and Mr. Abhishek Kothari, Learned Advocate for the Flat Purchasers, and, with their assistance, examined the materials relied upon by them in furtherance of their submissions.

6. Mr. Gharte would submit that in view of the law declared in Newtech, this Court should declare that the Learned Adjudicating Officer who passed the Impugne