JUDGMENT :

1. By way of this petition under Article 226 of the Constitution of India, the petitioner who is the Director of one Landmark Harmony Project has challenged the order dated 19.01.2019 passed by the Adjudicating Officer under the Real Estate (Regulation & Development) Act, 2016 (“RERA” for short).

2. Facts in brief would indicate that the petitioner is one of the Directors in the Landmark Probuild Private Limited, a company registered under the Indian Companies Act. The Company had constructed a residential complex on the land bearing Block No. 633/2, Final Plot No. 80 admeasuring about 5139 sq.meters at Unvarsad, Taluka: Gandhinagar. Development permission for the land was granted on 19.07.2011 for constructing residential flats. The company started construction naming the Scheme as “Landmark Harmony” comprising of 120 flats. The construction was completed and a Building Use Permission for the constructed new building was granted on 27.07.2016.

2.1 A Banakhat i.e. an Agreement to Sell was entered into between one Shrimati Sulekha Shyamsundar and one Shri Shyamsundar Karhana on 06.11.2014. Shri Shyamsundar Karhana is the respondent No.3 in the present petition. Being unable to pay the amount as per the terms of the Agreement to Sell, the parties renegotiated and the total consideration of the property was reworked as Rs.30,24,700/- which amount the respondent No.3 together with his wife could not pay.

2.2 A Consumer Complaint No.78 of 2017 was filed by the respondent No.3 before the Consumer Disputes Redressal Forum. The respondent No.3 withdrew his consumer complaint on 13.08.2018. This, presumably was done as the respondent No.3 on 08.08.2018 filed an online application with RERA. The applicant/respondent No.3 before the RERA Authorities in the complaint filed before the Adjudicating Officer sought compensation from the petitioner for not handing over Flat No. F-304. By the impugned order dated 19.01.2019, the RERA authority i.e. the Adjudicating Officer passed an order against the petitioner and in favour of the respondent No.3 directing the respondent No.3 to pay the remaining amount of Rs.5,10,000/- and directing the petitioner to give possession on receipt of the balance amount. The impugned order further imposed and directed payment of compensation of Rs.10,000/- and Rs.5,000/- towards costs.

3. Mr.Apurva Vakil, learned counsel for the petitioner, would make the following submissions:

3.1 Mr.Vakil, learned counsel, would submit that the development permission was granted on 19.07.2011. The Banakhat i.e. the Agreement to Sell was entered into between the wife and the respondent No.3 as party on the one hand and the company Landmark Pro Build on the other hand. The petitioner was only a Director of the Company. Neither the wife Sulekha Shyamsundar Ghasitasingh was the complainant before the RERA Authorities, nor the Company was made a party respondent. The complaint therefore was not maintainable as it was bad for mis-joinder and nonjoinder of parties.

3.2 Mr.Vakil, learned counsel, would submit that initially, if the consumer complaint filed before the Forum is perused, the prayers therein would indicate that the petitioner wanted to withdraw from the project and therefore had prayed for refund of the amount and compensation, whereas if the format of the application before the RERA is seen, the petitioner would submit that the respondent No.3 only made a claim for compensation under Sec.31 read with Sec.71 of the RERA Act.

3.3 In support of his submission, Mr.Vakil, learned counsel, would further submit that the application before the RERA Authorities filed on 08.08.2018 was filed without the leave of the court after withdrawing the consumer complaint on 13.07.2018 as provided under Sec.71 of the RERA Act. Mr.Vakil, learned counsel, would further submit that the scope of the complaint before the Commission and that